from the United States District Court for the Southern
District of Mississippi
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
H. SOUTHWICK, Circuit Judge
to a written plea agreement, Adan Casillas pled guilty to
possession with intent to distribute more than 50 grams of
actual methamphetamine. For the first time on appeal,
Casillas argues that the Government breached the plea
agreement when it recommended a role reduction but
subsequently put on argument and supporting evidence that
undermined that recommendation. The Government moves to
dismiss the appeal or, alternatively, for summary affirmance
based on the appeal waiver provision in the plea agreement.
Casillas contends that the appeal waiver is unenforceable
because of the Government's alleged breach.
a plea agreement was breached is analyzed under "general
principles of contract law"; we must "constru[e]
the terms strictly against the [G]overnment as [the] drafter
. . . ." United States v. Hebron, 684 F.3d 554,
558 (5th Cir. 2012). A breach occurs "when the
Government agrees to one thing at the plea but then actively
advocates for something different at sentencing."
United States v. Loza-Gracia, 670 F.3d 639, 644 (5th
Cir. 2012). Casillas has the burden of demonstrating a breach
by a preponderance of the evidence. United States v.
Roberts, 624 F.3d 241, 246 (5th Cir. 2010).
did not raise the breach issue in the district court. Our
review is thus for plain error. United States v.
Brown, 328 F.3d 787, 789 (5th Cir. 2003). Under plain
error review, a defendant must show (1) error, (2) that is
clear or obvious, and (3) that affected the defendant's
substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). If those requirements are met, we
may exercise discretion to remedy the error only if it (4)
"seriously affects the fairness, integrity or public
reputation of judicial proceedings." Id.
(quotation marks and alteration omitted).
when the plea agreement includes a waiver of the right to an
appeal, as there was here, a defendant may appeal to claim a
breach of a plea agreement. See Roberts, 624 F.3d at
244. A breach occurs if the Government's conduct was
inconsistent with a reasonable understanding of its
obligations. See United States v. Hinojosa, 749 F.3d
407, 413 (5th Cir. 2014). We start with determining just what
the Government agreed to do.
transcript from the sentencing hearing reveals that counsel
for the Government confirmed he was recommending a role
reduction based on the information the Government knew at the
time about Casillas's role in the drug trafficking
organization. Counsel also said the Government learned more
information about the depth of Casillas's involvement,
but "all of that was learned post my
recommendation" and he was sticking to the
recommendation for a role reduction.
quote the Assistant United States Attorney to make clearer
what was said at the sentencing hearing: "We made a
negotiated settlement based on what we knew at the time, and
that's what we do. And sometimes other information comes
in later that calls that into question, and we have to live
with the agreements that we've made. And so we do here
also." Twice more, the Government reiterated its
role-reduction recommendation. Specifically, the AUSA
informed the district court that the Government left the
recommendation "as simply a role reduction, " and
he later acknowledged that the Government did stipulate to a
role reduction and reinforced that it "stick[s] by that
record indicates that the Government complied with its
literal obligations under the plea agreement to make certain
statements to the court. The crux of Casillas's argument,
which is subject to our plain error review, is that the
Government breached the plea agreement - despite articulating
its agreed-to recommendation - by destroying the utility of
the recommendation through the presentation of evidence and
testimony that in effect showed Casillas was not actually
entitled to a safety-valve reduction.
disagree. The Government does not breach a plea agreement by
disclosing pertinent factual information to a sentencing
court. The plea agreement did not contain any provisions
restricting such disclosure. Indeed, "the Government
does not have a right to make an agreement to stand mute in
the face of factual inaccuracies or to withhold relevant
factual information from the court." United States
v. Block, 660 F.2d 1086, 1092 (5th Cir. Unit B Nov.
1981). The Casillas plea agreement supported this disclosure
obligation by expressly permitting the Government to advise
the district court of "the nature and extent of
[Casillas's] activities with respect to this case and all
other activities of [Casillas] which the U.S. Attorney deems
relevant to sentencing[.]" The Government recommended a
role reduction and informed the court of the additional
asserts that the Government breached the plea agreement when
it "begrudgingly" informed the district court of
its recommendation. Absent some provision in the plea
agreement, there is no level of enthusiasm the Government
must display when making a recommendation. See United
States v. Benchimol, 471 U.S. 453, 455 (1985). One of
our precedents that might seem to require something more was
discussed in Benchimol; the Supreme Court, though,
expressly recognized that our decision involved an expression
of "personal reservations" by the Government's
attorneys. Id. at 456 (discussing United States
v. Grandinetti, 564 F.2d 723 (5th Cir. 1977)).
Grandinetti is also poor support for Casillas both
because it predates the Sentencing Reform Act of 1984 and
because its review was not for plain error.