United States v. Eligio Perez ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16415 SEPTEMBER 7, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-20363-CR-FAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIGIO PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 7, 2006)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Eligio Perez appeals his conviction and 7-month sentence for unlawful
disclosure of confidential information, in violation of 18 U.S.C. § 1905. Perez
filed a notice of appeal from his judgment and sentence on November 15, 2005.
Several weeks later, on December 5, 2005, Perez filed a motion to vacate his plea
and sentence pursuant to Fed. R. Crim. P. 11. He argued, inter alia, that the
government breached the plea agreement at sentencing by not opposing the
presentence investigation report’s (“PSI”) recommended sentencing enhancement
for abuse of trust (which was ultimately applied), and by disclosing to the district
court a cooperating witness’s position regarding the charge filed against Perez and
the sentence recommended by the plea agreement. On December 8, 2005, the
district court denied the motion to vacate for lack of jurisdiction because it was
filed after Perez’s notice of appeal.
On appeal, Perez contends that the district court erred in failing to grant his
motion to vacate his plea and sentence. More specifically, he claims that the
government breached the parties’ plea agreement at sentencing by not opposing the
enhancement for abuse of a position of trust, and by disclosing the cooperating
witness’s position on Perez’s offense and plea agreement to the district court. In
response, the government argues that we lack jurisdiction to hear this appeal,
because Perez did not file a notice of appeal from the district court’s order denying
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his motion to vacate, or move to amend his earlier notice of appeal to include that
order.
We review questions regarding our subject matter jurisdiction de novo.
United States v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005) (per curiam),
cert. denied, __ U.S. __, 126 S. Ct. 1116, 163 L. Ed. 2d 924 (2006). Where an
appellant notices the appeal of a specified judgment only, a court “has no
jurisdiction to review other judgments or issues which are not expressly referred to
and which are not impliedly intended for appeal.” Whetstone Candy Co., Inc. v.
Kraft Foods, Inc., 351 F.3d 1067, 1079-80 (11th Cir. 2003) (quotations and
citations omitted); see also Fed. R. App. P. 3(c)(1)(B). Generally, a notice of
appeal does not include orders that have not been entered at the time when the
notice of appeal is filed. Bogle v. Orange County Bd. of County Comm’rs, 162
F.3d 653, 661 (11th Cir. 1998). Here, Perez filed his notice of appeal from the
district court’s judgment and sentence weeks before he moved to vacate his guilty
plea and sentence, and he offers no reason as to why his earlier notice of appeal,
even when liberally construed, can be said to encompass the district court’s denial
of his motion to vacate.1 We therefore lack jurisdiction to review, in the course of
1
We have acknowledged that in Intel Corp. v. Terabyte Int’l, Inc., 6 F.3d 614, 617-18
(9th Cir. 1993), the Ninth Circuit held that a prior notice of appeal encompassed a subsequent
district court order granting attorney’s fees because the appellant’s opening brief, which had
been filed within 30 days of the final order on attorney’s fees, essentially satisfied the
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the instant appeal, the district court’s order denying Perez’s motion to vacate.
To the extent that Perez raises a direct challenge on appeal regarding
whether the government breached the plea agreement, our review is for plain error
because Perez did not raise that objection at sentencing (i.e., he did not claim that
the government had breached the plea agreement). See United States v. Mahique,
150 F.3d 1330, 1332 (11th Cir. 1998) (per curiam) (ruling that where the district
court affords the defendant an opportunity to object after the imposition of
sentence and the defendant does not do so, “any objections to the sentence are
barred absent manifest injustice,” and that inquiry is equivalent to “review for plain
error”).2 We ask whether “(1) error occurred, and (2) the error is plain, (3) affects
the defendant’s substantial rights, and (4) 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, the error
generally “must have been prejudicial: It must have affected the outcome of the
district court proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.
requirements of Fed. R. App. P. 3. See LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832,
837-38 (11th Cir. 1998). Perez’s opening brief, however, was not filed within 10 days of entry
of the district court’s order denying the motion to vacate. See Fed. R. App. P. 4(b)(1)(A).
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Perez asserted that the sentence was unreasonable in light of the factors reviewed by the
district court, and in light of the fact that the sentence exceeded the recommendation in the
parties’ plea agreement, but Perez did not claim that the government had breached the plea
agreement.
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1770, 1778, 123 L. Ed. 2d 508 (1993). The defendant bears the burden of
establishing prejudice. See United States v. Rodriguez, 398 F.3d 1291, 1299 (11th
Cir.), cert. denied, __ U.S. __, 125 S. Ct. 2935, 162 L. Ed. 2d 866 (2005).
Here, Perez has not established that his substantial rights were affected by
(1) the government’s reference to the abuse of trust enhancement as “fair,” which
was immediately followed by the government’s caveat that it “did not anticipate”
that enhancement and was “bound” by the plea agreement, which recommended no
offense role enhancement; or (2) a special agent’s testimony–in response to queries
by the district court–that the cooperating witness (against Perez) felt that Perez’s
anticipated sentence “should have been considerably higher” and the charges
against him “more stringent than what they are.” At the time the government
commented on the abuse of trust enhancement, the district court had already
calculated the total offense level and applicable Guidelines range, without any
objection by Perez.3 Furthermore, the district court made it clear that, in light of
the facts set forth in the PSI–to which Perez did not object at sentencing–and the
factors set forth in 18 U.S.C. § 3553(a), it would not “go along” with the parties’
proposed sentence of 2 months’ home confinement. In particular, the district court
3
Perez asserts that the government should have objected to the district court’s application
of the abuse of trust enhancement based on the plea agreement, but this is unpersuasive in light
of the fact that Perez himself did not object to the Guidelines calculation.
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commented that “it is egregious to use your official authority and to disclose
confidential information in this day and age after 911,” and that “[t]he need for the
sentence imposed to reflect the seriousness of the offense, it has to be more than
house arrest because the offense was much too serious for that.” Ultimately the
court determined that, notwithstanding “all of the positive factors” emphasized by
Perez’s attorney, “this is not the type of case to go below the guidelines [range of
4-10 months]. . . . I cannot go along with that.” Thus, Perez has not demonstrated
plain error, and we affirm his conviction and sentence.
AFFIRMED.
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