United States v. Jerry Johnny Thompson, Jr. ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ JUNE 13, 2006
THOMAS K. KAHN
No. 05-15390 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00009-CR-HL-7
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY JOHNNY THOMPSON, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 13, 2006)
Before TJOFLAT, BLACK and RONEY, Circuit Judges.
PER CURIAM:
Jerry Johnny Thompson, Jr. pled guilty to conspiracy to possess more than
1000 kilograms of marijuana from April 4, 2004 through November 8, 2004, 21
U.S.C. §§ 841(a)(1) and (b)(1)(A)(vii), 846. This appeal essentially challenges his
327-month sentence on the ground that in assessing the sentence the district court
improperly relied upon information provided by the government in breach of its
plea agreement and in breach of an earlier promise of immunity for his
cooperation. Although we affirm the judgement of the district court, this is the
only issue that needs discussion.
The record is insufficient to make a decision on Thompson’s claim that he
received ineffective assistance of counsel because his attorney did not object to the
government’s breach of the plea agreement; United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002), United States v. Espino-Perez, 798 F.2d 439, 440-41
(11th Cir. 1986).
To the extent that Thompson challenges his sentence for any additional
reason, such as whether the district court improperly enhanced Thompson’s
sentence for possession of a weapon and for recruiting a minor (issues upon which
the government properly argues that the district court properly determined the
merits in any event), it is foreclosed by the waiver contained in his plea agreement.
United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001). The district court
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specifically questioned Thompson about his sentence appeal waiver. In
questioning Thompson, the district court stated that he could appeal on two
grounds: ineffective assistance of counsel and an illegal application of the
guidelines and Thompson indicated that he understood. (R5 at 14-15). Thompson
does not allege there was an illegal application of the guidelines except to the
extent the district court relied on information produced in violation of two
government agreements.
As to the alleged breach of a plea agreement, this Court has, in the past, held
that an appeal waiver does not prevent a defendant from appealing an alleged
breach of the plea agreement. United States v. Copeland, 381 F.3d 1101, 1105
(11th Cir. 2004). Thompson argues that the government, in order to secure his
conviction and sentence, breached the plea agreement by using information he
provided to them.
According to Thompson, the government made two promises. The first
promise was an informal immunity agreement that Thompson asserts he made with
the United States Attorney in Beaumont, Texas, that formed the basis of his
cooperation with the DEA. The second promise, which Thompson contends was
written in the plea agreement, states that the information provided to the
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government would not be used against him, and that his sentence would be reduced
if he provided substantial assistance.
The issue of whether the government breached a plea agreement is a
question of law, to be reviewed de novo, and since no objection was raised in the
district court, we review for plain error. United States v. Mahique, 150 F.3d 1330,
1332 (11th Cir. 1998). A material promise by the government, which induces the
defendant to plead guilty, binds the government to that promise. Santobello v. New
York, 404 U.S. 257, 262, 92 S.Ct. 496, 499, 30 L.Ed.2d 427 (1971). Whether the
government violated a plea agreement is judged according to the defendant’s
reasonable understanding of the agreement at the time he entered the plea as
determined according to objective standards. United States v. Rewis, 969 F.2d 985,
988 (11th Cir. 1992). The standards applied to the interpretation of a plea
agreement are as follows: (1) hyper-technical and rigid construction of the
language in a plea agreement are unacceptable, (2) the written agreement should be
viewed against the background of the negotiations and should not be interpreted to
contradict directly an oral understanding, and (3) an ambiguous plea agreement
must be interpreted against the government. United States v. Jeffries, 908 F.2d
1520, 1523 (11th Cir. 1990).
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There was no error, plain or otherwise, because the record does not support
the allegation that the government breached either of the alleged agreements.
In the first instance, there is no evidence that an informal immunity
agreement existed. The only mention that there might be an agreement was made
by Thompson during his sentencing, and he only stated that he had been told that if
he assisted the officials in Beaumont, Texas in apprehending his now deceased co-
conspirator Resendez, he might receive a lighter sentence. Assuming, arguendo,
that this promise was made, Thompson’s own description suggests that it was not
an immunity agreement. Moreover, there is no mention of the immunity
agreement elsewhere in the record. At the change of plea hearing, Thompson
asserted that he had not been promised anything. Without the existence of an
agreement, there can be no breach.
There is similarly no plain error with regards to the written plea agreement.
Thompson’s plea agreement stated that “the United States agrees that any self-
incriminating information which was previously unknown to the United States and
is provided to the United States by [Thompson] in connection with [his]
cooperation and as a result of [his] plea agreement to cooperate will not be used in
determining the advisory guideline range.” These terms unambiguously indicate
that the only information that would not be used in determining his advisory
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guideline sentence was that provided (1) by Thompson, (2) after the date on which
he entered the plea agreement, and (3) because of the existence of the plea
agreement. Thus, the government is only precluded from using information
provided after Thompson’s guilty plea. The evidence it produced at the sentencing
hearings in support of the advisory guidelines calculations was gathered before
Thompson was indicted. Consequently, the government did not breach the written
plea agreement.
AFFIRMED.
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