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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10673
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLAY PUGH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:20-cr-00016-CDL-MSH-1
____________________
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2 Opinion of the Court 21-10673
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Clay Pugh appeals his sentence of 84 months’ imprisonment
for possessing firearms in furtherance of a drug trafficking crime.
On appeal, Pugh argues that some of the government’s statements
at sentencing implicitly advocated for an upward variance—despite
the government’s promise to recommend a downward departure
that was made impossible by Pugh’s mandatory minimum
sentence—therefore breaching the terms of his plea agreement.
Because Pugh failed to argue below that the government breached
his plea agreement, we review for plain error. After careful review,
we affirm.
I. BACKGROUND
On January 29, 2020, a police officer in Columbus, Georgia
noticed a vehicle with illegally tinted windows. The officer had
previously stopped the car a number of times, and was familiar
with its owner, Rashad Thomas, as well as Clay Pugh, a regular
occupant and the driver of the vehicle that day. The officer radioed
for backup, and two marked police vehicles initiated a traffic stop.
As an officer approached the vehicle, Pugh sped away, striking a
minivan and leading officers on a highspeed chase through before
crashing. Pugh fled the vehicle on foot, but officers eventually
apprehended him in the backyard of a home.
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During Pugh’s arrest, officers searched his person and the
vehicle. Officers recovered a plastic bag containing what they
suspected to be cocaine base lying in plain view on the driver’s seat,
as well as a second plastic bag—containing approximately 6.15g of
heroin and fentanyl, according to subsequent field testing—stashed
in a cigarette box in the well of the driver’s side door, and
approximately .2g of test-confirmed methamphetamine in the
passenger seat area. Further, officers discovered loose ammunition
and two semiautomatic pistols on the front passenger floorboard,
both loaded with rounds already chambered—a Bushmaster model
Carbon-15 semiautomatic pistol on the driver’s side floorboard and
an HS Produkt model XDm-99 semiautomatic pistol in the center
console.
A federal grand jury subsequently indicted Pugh on four
counts: (1) one count of unlawful possession of firearms by a
convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2);
(2) one count of possession with intent to distribute crack cocaine
in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C); (3) one count of
possession with intent to distribute heroin in violation of
21 U.S.C.
§ 841(a)(1), (b)(1)(C); and (4) one count of possession of firearms in
furtherance of a drug trafficking crime in violation of
18 U.S.C.
§ 924(c)(1)(A).
Shortly after Pugh was indicted, the United States District
Court for the Middle District of Georgia enacted a temporary
moratorium on jury trials until mid-July 2020 due to the COVID-
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19 pandemic, which it subsequently extended into early 2021.
During that time, Pugh entered into a written plea agreement with
the government. In exchange for Pugh’s pleading guilty to count
four1—possession of a firearm in furtherance of a drug trafficking
crime—and waiving most of his appeal rights, the United States
agreed to a number of provisions, including four relevant to the
present appeal: (1) to drop the remaining counts against him; (2) to
apprise the district court of the extent of Pugh’s cooperation, and,
in the government’s discretion, to consider whether any assistance
completed prior to sentencing warranted a motion seeking a
downward departure from the guidelines pursuant to 18 U.SC.
§ 3553(e) or U.S.S.G. § 5K1.1; (3) to recommend a downward
departure if Pugh manifested responsibility; 2 and (4) to make a non-
binding recommendation for a two-level downward departure
pursuant to U.S.S.G. § 5K2.0(a)(2)(B) in exchange for Pugh’s
pleading guilty during the jury trial moratorium. The district court
accepted Pugh’s plea and scheduled his sentencing hearing for
February 23, 2021.
The United States Probation Office then prepared a pre-
sentence investigation report (“PSI”). The Probation Office
concluded in the PSI that Pugh failed to accept full responsibility
1 Pugh’s plea agreement memorialized his understanding that count four
carried a mandatory minimum sentence of five years’ imprisonment.
2 The government explicitly reserved the right to provide information to the
district court showing that Pugh had not manifested responsibility.
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21-10673 Opinion of the Court 5
for his actions because he remained involved in criminal activity
and had not withdrawn from gang membership. Moreover, after
determining that the applicable guideline for Pugh’s crime was
U.S.S.G. § 2K2.4—which recommends the statutory mandatory
minimum term of five years’ imprisonment—the Probation Office
calculated a total criminal history score of 11, a criminal history
category of V, and a guidelines sentence of 60 months
imprisonment and between 24 and 60 months’ supervised release.
See
18 USC § 924(c)(1)(A).
Prior to Pugh’s sentencing hearing, he was informed
through his counsel that the district court was considering an
upward variance from the guidelines sentence.
On February 23, 2021, the district court held Pugh’s
sentencing hearing virtually. Neither party objected to the PSI and
its calculation of the guidelines range for Pugh’s offense. The court
noted for the record that Pugh had previously been notified that
the court was considering an above guidelines sentence, before
giving Pugh an opportunity to speak. Pugh’s attorney then asked
the court to impose the minimum guidelines sentence of 60
months’ imprisonment.
The district court interrupted Pugh’s counsel, to “describe
for [him] [its] concerns about the guideline sentence in this case . . .
.” The court explained that, because of the mandatory minimum,
the same sentence “would apply in a case for a defendant who has
no criminal record, who had the legal right to possess a gun . . . and
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someone who was completely compliant during the arrest.” The
court emphasized that Pugh had “a criminal history that includes
offenses that have shown an inclination to be dangerous to . . .
other persons” and “dangerous previous criminal conduct,” and
“was a convicted felon who . . . was prohibited from possessing a
gun; and . . . when he was arrested he eluded arrest by engaging
the law enforcement in a chase that placed them and members of
the public in danger.” In light of those factors, the district court
challenged Pugh’s counsel to “explain . . . how it’s rational for
someone under those circumstances to receive the same exact
sentence as someone who commits this offense with no criminal
history, no gun prohibition, and no eluding of police during an
arrest.” Though Pugh’s counsel pointed to the guidelines as
imposing a uniform minimum without regard to aggravating
factors, the court emphasized that the guidelines “are advisory and
are just that. They are a guideline.” Indeed, the court postulated
that, “[i]f I didn’t take those matters into account and just
sentenced [Pugh] to 60 months, then I’m completely ignoring the
circumstances that make this different than other cases, am I not?”
Pugh’s counsel responded that the guidelines prohibited a
downward adjustment for someone without aggravating
circumstances, too.
The court then asked the government to weigh in on a
potential upward variance. The Assistant United States Attorney
explained that the government “offered the 924(c) count because
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[it] thought . . . it was an appropriate middle ground,” for which
courts typically impose a 60 month sentence. She continued:
Having said that . . . in all candor and for credibility
purposes, I have to agree with the Court that Mr. Pugh’s
criminal history is concerning. It does span 18 years. And I
would also add, typically with 924(c), the 60 months is the
floor and not the ceiling. And so based on the actual plea
agreement, the mandatory minimum is 60 months, but the
maximum could be up to life. And so the Court could
impose more time.
The AUSA went on to say:
I want to be clear. The government is not asking for life
imprisonment. However, we do understand if the Court
was going to impose—excuse me—would vary upward
based on the individual characteristics of Mr. Pugh.
Admittedly, his criminal history is concerning. So we do
not take a position, but we would defer to the Court in
this particular regard.
After explaining that it had reviewed the PSI and recognized
that Pugh’s offense carried a five-year mandatory minimum, the
district court announced that it found the advisory sentencing
range “inadequate” based on the
18 U.S.C. § 3553(a) sentencing
factors, “the nature and circumstances of [Pugh’s] reckless conduct
in this offense,” Pugh’s “significant and dangerous criminal history
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and his personal history,” and “his eluding of police officers during
his arrest which placed them in danger as well as the general
public.” Accordingly, the district court applied an upward variance
to the guidelines range and sentenced Pugh to 84 months’
imprisonment. Pugh timely appealed.
II. ANALYSIS
A. Standard of Review
We review for plain error the district court’s acceptance of a
plea agreement that the government allegedly breached when the
defendant failed to object to the plea agreement in the district
court. United States v. De La Garza,
516 F.3d 1266, 1269 (11th Cir.
2008). To prevail under plain error review, the defendant bears the
burden of demonstrating that the district court (1) plainly (2) erred
(3) in a way that affected his substantial rights. United States v.
Iriele,
977 F.3d 1155, 1177 (11th Cir. 2020). Even if he makes that
showing, we may remedy the error only where it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.
Id.
An error is plain only if it is clearly established under current
law. United States v. Chau,
426 F.3d 1318, 1322 (11th Cir. 2005).
Hence, an error cannot be plain without clear precedent from this
Court or the Supreme Court directly resolving the issue. United
States v. Sammour,
816 F.3d 1328, 1337 (11th Cir. 2016). Further,
in the plea agreement context, not all breaches are clear or obvious:
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when the scope of the government’s commitment is open to doubt
or the government has a colorable excuse for nonperformance, the
error may not be plain. See Puckett v. United States,
556 U.S. 129,
143 (2009).
B. Pugh cannot establish prejudice and, therefore,
plain error.
At the outset, we note that Pugh did not waive his right to
appeal his sentence in this case. In the plea agreement, Pugh
waived his right to appeal his sentence in most situations, but not
“in the event that the District Court imposes a sentence that
exceeds the advisory guideline range as that range has been
calculated by the District Court at the time of sentencing.”
Moreover, even if Pugh had waived his appeal rights in this case,
“an appeal waiver does not bar a defendant’s claim that the
government breached the plea agreement.” United States v.
Hunter,
835 F.3d 1320, 1324 (11th Cir. 2016). Accordingly, Pugh’s
appeal is properly before us.
Pugh argues that the district court erred by accepting the
plea because the government not only breached its agreement to
recommend a downward adjustment in exchange for his guilty
plea during the jury trial moratorium, but, in fact, went a step
further by encouraging the court to impose an above-guidelines
sentence. Although Pugh recognizes that the mandatory
minimum precluded the government from recommending a
downward departure, he maintains that we are bound to interpret
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his plea agreement in a way that does not render the government’s
promises illusory. And, according to Pugh, reading the agreement
to permit the government to advocate for an above-guidelines
sentence would do just that.
But our stringent requirements on plain error review
require more than a demonstration of error. Hence, we need not
consider whether the district court erred by accepting the plea
agreement because he cannot demonstrate that any purported
breach prejudiced him. 3
In the context of a plea breach, a defendant’s substantial
rights are affected if the defendant’s sentence was affected by the
breach. Puckett,
556 U.S. at 142 n.4. Consequently, a defendant
must show a reasonable probability that his sentence would have
been different without the breach. See United States v. Rodriguez,
398 F.3d 1291, 1299 (11th Cir. 2005). But if the effect of a plain error
on sentencing is uncertain, requiring us to speculate about its
effect, then the defendant necessarily fails to meet his burden on
appeal. See
id. at 1301.
Consider United States v. Romano, in which we held that
the district court committed plain error in accepting a plea
agreement after the government breached its terms.
314 F.3d 1279,
3 Likewise, because Pugh’s 924(c) offense carries a mandatory minimum
sentence of 60 months’ imprisonment, he cannot demonstrate that the
government’s failure to recommend a downward departure adversely affected
his rights.
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1281–82 (11th Cir. 2002). Pursuant to a plea agreement with the
defendant, the government agreed to drop the latter of two counts
in the indictment and not to oppose the defendant’s requests for a
specific base offense level. It also agreed that only two specific
upward adjustments would apply.
Id. at 1280. Although the PSI
set the agreed-upon base offense level and applied the two upward
adjustments to which the defendant had agreed, it also applied two
additional two-level increases based on the count that the
government had agreed to dismiss in exchange for the defendant’s
guilty plea.
Id. Later, at sentencing, the prosecutor recognized that
the parties had agreed to dismiss the second count—the predicate
for the additional upward adjustments—and, yet, “[t]he prosecutor
nonetheless urged the court to apply the enhancements, and the
court did so.” 4
Id. at 1281 (emphasis added). Unsurprisingly, we
held that the upward adjustment necessarily prejudiced the
defendant at sentencing, resulting in plain error.
Id. at 1282.
Juxtaposing Romano with Pugh’s case reveals an important
distinction between them: who initiated the conversation about a
longer sentence than the plea agreement contemplated. Whereas,
in Romano, the government took the initiative in deviating from
4 Additionally, “the prosecutor urged the court to depart upwardly from the
Guidelines sentence range (recommended in the PSI) on the ground that ‘a
criminal history category of five does not adequately represent the defendant’s
prior criminal conduct . . . .’" After saying this, the prosecutor proceeded to
argue at length (in five pages of the sentencing transcript) why the court
should depart.”
Id. at 1281.
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the plea agreement, the court did so in this case. The record in
Pugh’s case makes it clear that, prior to sentencing, the district
court wanted a longer sentence—it notified him of its intent to
consider an upward departure from the sentencing guidelines
based on history and behavior. The court then questioned Pugh’s
counsel at sentencing, expressing its extreme skepticism of the
appropriateness of the mandatory minimum. Finally, the court
initiated the conversation with the prosecutor which is at issue in
this appeal. While answering the court’s questions, the prosecutor
nonetheless continued to refer back to the plea agreement.
Accordingly, Pugh cannot say that the government lobbied the
court for an above guidelines sentence.
Meanwhile, Pugh fails to point to anything in the record
suggesting that, but for the government’s statements, he would
have received a more favorable sentence. See Puckett,
556 U.S. 129
at 141–42 & n.4. And, “where the effect of an error on the result in
the district court is uncertain or indeterminate—where we would
have to speculate—the appellant has not met its burden of showing
a reasonable probability that the result would have been different
but for the error; he has not met his burden of showing prejudice;
he has not met his burden of showing that his substantial rights
have been affected.” Rodriguez, 398 F.3d at 1301.
Because Pugh cannot demonstrate prejudice, and therefore
cannot establish plain error, we affirm.
AFFIRMED.
