United States v. Yasmani Lazo , 286 F. App'x 725 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-10681 ELEVENTH CIRCUIT
Aug. 8, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-60219-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YASMANI LAZO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 8, 2008)
Before ANDERSON, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Yasmani Lazo appeals from his conviction for conspiracy to interfere with
commerce by threats or violence, in violation of 18 U.S.C. § 1951(a). The sole
issue on appeal is whether the government breached the plea agreement by arguing
against a sentencing reduction for acceptance of responsibility and by failing to
voice a recommendation for a sentence at the low end of the applicable guideline
range. After thorough review, we affirm.
“Whether the government has breached a plea agreement is a question of
law that [we] review[] de novo.” United States v. Mahique, 150 F.3d 1330, 1332
(11th Cir. 1998). However, when there was no objection below, “any objections
to the sentence are barred absent manifest injustice,” which equates with review
for plain error. Id. A reversal under plain error review requires (1) error, (2) that
is plain, (3) that affects the defendant’s substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.
United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). For an error to
affect substantial rights, “in most cases it means that the error must have been
prejudicial: It must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993).
Plea agreements are interpreted like contracts, and are viewed “against the
background of the negotiations.” United States v. Jeffries, 908 F.2d 1520, 1523
(11th Cir. 1990) (citation omitted). Thus, where a plea agreement conditioned the
government’s non-opposition to the acceptance of responsibility reduction on the
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defendant’s full and accurate disclosure to probation, we have found no breach of
the agreement when the government opposed the reduction based on the
defendant’s failure to fully disclose. Mahique, 150 F.3d at 1332.
We are not persuaded by Lazo’s argument. The agreement at issue provided
that the government would recommend a reduction for acceptance of
responsibility for Lazo, but expressly conditioned this obligation on Lazo not
making any “false statements or misrepresentations to any governmental entity or
official” after entering into the plea agreement. In light of this condition, Lazo’s
testimony at his sentencing hearing, which was inconsistent with that of the victim
and the surveillance tapes, and which the district court found not to be credible,
released the government from its obligations to recommend both an acceptance-of-
responsibility adjustment and a low-end sentence. Mahique, 150 F.3d at 1332.
Moreover, even if the government’s change in position regarding an
adjustment for acceptance of responsibility did constitute a breach of the plea
agreement, Lazo has not shown plain error -- the standard applicable here because
Lazo did not voice any objection below to the government’s alleged breach of the
plea agreement. See Romano, 314 F.3d at 1281. First, the government’s argument
against a reduction for acceptance of responsibility did not have a prejudicial
effect on Lazo, as the district court granted the reduction, despite the
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government’s argument against it. Second, the district court acknowledged the
government’s recommendation of a low-end sentence, and the government’s
failure actually to voice such a recommendation was not prejudicial to Lazo.
Because neither of the government’s alleged breaches affected Lazo’s substantial
rights, there was no plain error. Olano, 507 U.S. at 734. Accordingly, we affirm.
AFFIRMED.
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