USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13574
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HAMILTON SHARPE,
a.k.a. David Dukkedoff,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cr-00016-RSB-CLR-28
____________________
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2 Opinion of the Court 21-13574
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Defendant-Appellant David Sharpe appeals his 292-month
sentence, arguing the government breached its plea agreement to
recommend 180 months. After careful review, we affirm his sen-
tence.
I.
A grand jury indicted Sharpe for conspiracy to possess with
intent to distribute and distribute 50 grams or more of metham-
phetamine and other controlled substances, in violation of
21
U.S.C. §§ 841(a)(1) and 846 and
18 U.S.C. § 2 (Count 1) and posses-
sion of methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1) (Count 38). Sharpe and the government en-
tered a plea agreement. In exchange for pleading guilty to Count
1, the government agreed to dismiss Count 38 and recommend a
sentence of 180 months’ incarceration. The agreement also did not
preclude “the government from providing full and accurate infor-
mation to the Court and U.S. Probation Office for use in calculating
the applicable Sentencing Guideline range.”
The Probation Office prepared a Presentence Investigation
Report (PSI) and calculated an advisory guideline range of 360
months to life imprisonment. Sharpe objected to the PSI and re-
quested the Probation Office correct the criminal history score and
make note of the recommendation in the plea agreement. The
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21-13574 Opinion of the Court 3
government filed a notice that it had no objection or comment re-
garding the PSI. All objections were resolved before the sentencing
hearing, and the district court accepted the PSI and its findings.
Sharpe also moved for a downward variance, arguing that
the government’s 180-month recommendation served as a better
advisory sentence. The government did not respond.
At the sentencing hearing, the district court invited the gov-
ernment to present an argument regarding the appropriate sen-
tence. The government stated, “we did file—enter a plea agree-
ment. We had a joint, nonbinding recommendation where the
United States was going to recommend—or is going to recom-
mend the 15-year sentence of imprisonment.”
Citing the PSI, the government then described Sharpe’s “sig-
nificant” criminal history and conduct. It also mentioned mitigat-
ing factors such as his difficult childhood, early drug abuse, mental
health issues, expulsion from ninth grade, and procurement of a
General Education Development certificate.
The district court made two inquiries. First, it asked
whether Sharpe played a larger role in the conspiracy than a code-
fendant. The government clarified that Sharpe played a “different
role.” While the codefendant had more access to drugs through a
cartel connection, Sharpe was “very good at coordinating deals”
both inside and outside of prison through his gang involvement.
Second, recognizing the PSI contained statements from witnesses
who claimed Sharpe managed drug distribution for multiple years,
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4 Opinion of the Court 21-13574
the court asked if the quantity of drugs attributed to him in the PSI
was limited to the drugs discovered in a single search of his home.
The government confirmed this to be the case.
The district court ultimately sentenced Sharpe to 292
months’ imprisonment. The court noted that it considered the par-
ties’ arguments, read the PSI, and weighed the factors in
18 U.S.C.
§ 3553(a). The court stated that it varied downward from the orig-
inal guideline range because it found Sharpe’s criminal history to
be less substantial than was suggested, and a more appropriate
guideline range was 292 to 365 months. Choosing the low end, the
court cited the difficult life circumstances faced by Sharpe. None-
theless, it explained that it found the recommended sentence of 180
months to be “far, far too low” given the seriousness of Sharpe’s
offense, the extent of his criminal history, and the sentences given
to similarly situated defendants. The court went on to say that it
appreciate[s] when parties come together and get a
joint recommendation to the Court. It’s helpful to
the Court. It’s one of the reasons that I took a close
look at this case and that I did end up varying down-
ward from the guideline range, but it’s clear that I
need to maintain the discretion in some instances to
impose a higher sentence.
Neither party objected at that point, and Sharpe timely ap-
pealed.
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21-13574 Opinion of the Court 5
II.
“Whether the Government breached a plea agreement is a
question of law, to be reviewed de novo.” United States v. De La
Garza,
516 F.3d 1266, 1269 (11th Cir. 2008). However, when a
party fails to raise the issue before the district court, we review for
plain error.
Id. Federal Rule of Criminal Procedure 51(b) provides
that “[a] party may preserve a claim of error by informing the
court—when the court ruling or order is made or sought—of the
action the party wishes the court to take, or the party’s objection
to the court’s action and the grounds for that objection.”
Sharpe urges us to review this issue de novo for two reasons.
First, he makes the novel argument that, when plea agreements are
broken, the defendant may prospectively preserve a claim or error
by informing the government and the district court through writ-
ten motion or oral argument that there is a joint recommendation
for a particular sentence. Sharpe argues that since he did this, both
the government and the district court were on notice of the gov-
ernment’s duty to recommend the 180-month sentence, and the
claim of error was preserved. Second, Sharpe argues that any at-
tempt to object to the error after it was made would be futile, since
the district court would already understand the government’s true
position regarding the sentence.
Both of Sharpe’s arguments fail. Sharpe points to Holguin-
Hernandez v. United States,
140 S. Ct. 762 (2020), to support the
proposition that claims of error can be made prospectively. In Hol-
guin-Hernandez, defense counsel made clear arguments in support
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6 Opinion of the Court 21-13574
of a downward departure from the Sentencing Guidelines. See 140
S. Ct. at 765. Finding those arguments preserved the claim that the
sentence was unreasonable, the Supreme Court stated that the
“question is simply whether the claimed error was ‘brought to the
court’s attention.’ Here, it was.” Id. at 766 (internal citation omit-
ted).
Here, it was not. In Holguin-Hernandez, defense counsel
wanted the district court to make a downward departure from the
Sentencing Guidelines, so counsel argued for that. Here, Sharpe’s
counsel wanted the government to recommend and make argu-
ments in favor of a 180-month sentence. Yet, all Sharpe’s counsel
did was acknowledge the plea agreement, stating “[the sentence] is
jointly recommended by the parties, as evidenced in Paragraph 4
of [the] plea agreement and has been mentioned today by the
United States.” At no time did Sharpe’s counsel bring to the court’s
attention his position that the government was required to argue
for the 180-month sentence, nor did he ever object that the govern-
ment was violating its obligations under the plea agreement.
Simply put, Sharpe’s counsel did nothing to put the government or
the district court on notice that he had, or would have, any issue
with the government’s conduct. Thus, his objection was not
properly preserved. See Puckett v. United States,
556 U.S. 129,
133–35 (2009) (“This limitation on appellate-court authority serves
to induce the timely raising of claims and objections, which gives
the district court the opportunity to consider and resolve them.”).
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21-13574 Opinion of the Court 7
Sharpe’s argument that objecting to the government’s
breach in court would be futile is less novel and has already been
rejected by the Supreme Court. Indeed, in Puckett, the Court ad-
dressed this very argument and found that our procedural rules still
require a contemporaneous objection in this context for multiple
reasons: it prevents defendants from adopting a wait-and-see ap-
proach to objections; it allows the district court to adjudicate un-
conceded breaches and create a record for appellate review; it per-
mits some breaches to be cured upon objection; and it allows dis-
trict courts to grant immediate remedies if established breaches
cannot be cured. See
id. at 139–40. Because the Supreme Court
has considered this exact argument and rejected it, we must as well.
Though, we also note that even if an objection were futile at the
district court level, we have granted relief when claims are properly
preserved. See, e.g., United States v. Hunter,
835 F.3d 1320 (11th
Cir. 2016).
Finding Sharpe did not preserve the claim of error for ap-
peal, we review for plain error.
III.
We find plain error when there is “(1) an 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 judi-
cial proceedings.” De La Garza,
516 F.3d at 1269. An error is plain
if the explicit language of a statute, rule, or binding precedent
makes the mistake clear and obvious. United States v. Innocent,
977 F.3d 1077, 1081 (11th Cir. 2020). A defendant’s substantial
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8 Opinion of the Court 21-13574
rights are affected if the error “affected the outcome of the district
court proceedings.” Puckett,
556 U.S. at 135 (quoting United States
v. Olano,
507 U.S. 725, 734 (1993)). The defendant bears the bur-
den of showing there is a reasonable probability the error was prej-
udicial, such that confidence in the outcome of the proceeding is
undermined. United States v. Iriele,
977 F.3d 1155, 1177 (11th Cir.
2020).
“When a guilty plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must be ful-
filled.” United States v. Rewis,
969 F.2d 985, 988 (11th Cir. 1992).
Thus, to determine whether a plea agreement was breached, “we
must first determine the scope of the government’s promises.”
United States v. Copeland,
381 F.3d 1101, 1105 (11th Cir. 2004).
This is determined by the defendant’s reasonable understanding of
the government’s promises at the time the agreement was signed.
Hunter, 835 F.3d at 1324. This is an objective standard, asking
“whether the government’s actions are inconsistent with the de-
fendant’s understanding of the plea agreement, rather than reading
the agreement in a hyper-technical or rigidly literal manner.” Id.
(internal quotation marks and citations omitted).
Here, Sharpe maintains he had a reasonable understanding
that the recommendation included a promise to use reasonable ef-
forts to advocate for a 180-month sentence; yet the government did
not use reasonable efforts. He points out that the government did
not object to the initial PSI nor respond after he moved for a
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21-13574 Opinion of the Court 9
downward variance. Sharpe also contends that the government
barely mentioned the recommendation at the sentencing hearing
and failed to provide further explanation for why it was appropri-
ate. Instead, the government discussed Sharpe’s “significant” crim-
inal history. In addition, Sharpe claims he was “blindsided” when
the government took positions contrary to the recommended sen-
tence when answering the court’s questions. Specifically, Sharpe
takes issue with the government failing to argue he was less culpa-
ble than his codefendant and agreeing that the PSI did not account
for the drugs attributed to Sharpe by his coconspirators. All this,
Sharpe argues, was plain error. Sharpe also contends that the gov-
ernment’s conduct had a prejudicial impact on the final sentence.
We are unconvinced that these actions—even if they were
mistakes—were so “clear” and “obvious” that they amounted to
plain error. Olano,
507 U.S. at 734.
We consider first Sharpe’s claim that the government took
positions contrary to the plea agreement. Certainly, we have
found that doing so constitutes a breach. Yet, our caselaw finds
breach where the government took positions blatantly at odds with
the plea agreements. See, e.g., Hunter, 835 F.3d at 1328 (finding
breach when the government argued against a sentence reduction
despite an agreement to recommend it); United States v. Johnson,
132 F.3d 628, 630–31 (11th Cir. 1998) (finding breach when the gov-
ernment argued in favor of a PSI determination that the defendant
was accountable for 1400 pounds of marijuana despite an agree-
ment that no more than 100 pounds would be attributed to him).
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10 Opinion of the Court 21-13574
Here, the government promised it would recommend a sentence
of 180 months but maintained that it could provide information to
aid in calculating the Sentencing Guideline range. Unlike the cases
above, the government here did not clearly and obviously take po-
sitions contrary to those commitments. Rather, it stated that it was
recommending a 180-month sentence, it provided details about
Sharpe’s criminal history that were relevant to the Sentencing
Guidelines, and it answered questions that were also relevant to
the Guidelines. Indeed, the district court acknowledged that a joint
recommendation was made and used the information from the
hearing to discern a new, lower guideline range.
Neither are we convinced that it was objectively reasonable
for Sharpe to believe that an agreement to recommend a sentence
came with an implied promise to make arguments in favor of it.
Sharpe relies on United States v. Grandinetti where, despite a
promise to recommend a five-year sentence, the government
stated it had a serious issue with the agreement, was unsure of its
legality, but was nonetheless bound.
564 F.2d 723, 725 (5th Cir.
1977). 1 There, the district court stated that “the consideration
which induced defendant’s guilty plea was not simply the prospect
of a formal recitation of a possible sentence.”
Id. at 726. Rather,
the defendant was induced by “the promise that an Assistant
1 We are bound by decisions of the former Fifth Circuit handed down before
October 1, 1981. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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21-13574 Opinion of the Court 11
United States Attorney would make a recommendation on sen-
tencing,” which “could reasonably be expected to be the sound ad-
vice, expressed with some degree of advocacy.”
Id.
Yet, the Supreme Court clarified in United States v.
Benchimol that such advocacy is not required.
471 U.S. 453 (1985).
There, the government agreed to recommend probation, but the
PSI said the government would stand silent at the sentencing hear-
ing.
Id. at 454–55. When the defense counsel informed the court
that the government was to recommend probation, the govern-
ment merely confirmed that was accurate.
Id. at 455. Relying on
Grandinetti, the Fifth Circuit determined it was a breach to merely
state the recommended sentence without explaining reasons for
the agreement or providing more enthusiastic support.
Id. Revers-
ing, the Supreme Court stated that while “the Government in a
particular case might commit itself to ‘enthusiastically’ make a par-
ticular recommendation to the court” or “to explain to the court
the reasons for the Government’s making a particular recommen-
dation,” there was no finding “that the Government had in fact un-
dertaken to do either of these things here.”
Id.
Here, the government agreed to recommend a sentence of
180 months, and it did. Although it did not provide enthusiastic
advocacy, it was not required to do so under the scope of the agree-
ment. And unlike Grandinetti, the government made no sugges-
tion that it took issue with the agreement. In other words, while
the government may have done the bare minimum it was required
to do, it nonetheless did the minimum.
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12 Opinion of the Court 21-13574
Even if we were to find that Sharpe demonstrated the gov-
ernment committed plain error, Sharpe cannot show there is a rea-
sonable probability that his substantial rights were affected. Sharpe
argues that the government’s actions had a profound impact on the
sentencing, but the record casts doubt on that claim. The district
court noted that it had considered the plea agreement but found
the recommendation “far, far too low” because “180 months would
simply not be sufficient” to reflect the severity of the offense, deter
future conduct, promote respect for the law, provide just punish-
ment, and protect the public. At best, we can only speculate
whether Sharpe would have received a more lenient sentence had
the government argued in his favor more vociferously. And there-
fore, we cannot conclude there is a reasonable probability that his
substantial rights were prejudiced.
IV.
Sharpe’s claim that the government breached the plea agree-
ment was not timely made, and therefore plain error review ap-
plies. Because Sharpe was unable to show the government obvi-
ously broke its promises or his substantial rights were clearly
harmed, we cannot find the government plainly erred. Accord-
ingly, we affirm.
AFFIRMED.
