United States v. Jeramy Gage , 668 F. App'x 120 ( 2016 )

Case: 15-20577 Document: 00513647291 Page: 1 Date Filed: 08/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20577
FILED
August 22, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JERAMY JEROME GAGE,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-336-1
Before SMITH, BARKSDALE, AND HAYNES, Circuit Judges.
PER CURIAM: *
Jeramy Jerome Gage pleaded guilty, pursuant to a written plea
agreement, to conspiring to possess, with intent to distribute, five kilograms or
more of cocaine and less than 50 kilograms of marijuana, in violation of 21
U.S.C. §§ 841 and 846. The court sentenced him at the bottom of the applicable
advisory Guidelines sentencing range to, inter alia, 292 months’ imprisonment.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 15-20577 Document: 00513647291 Page: 2 Date Filed: 08/22/2016
No. 15-20577
Gage challenges his sentence, contending the Government breached the plea
agreement in two ways.
The plea agreement included a waiver of Gage’s right to appeal his
sentence; but, obviously, the waiver is unenforceable if the Government
breached the agreement. See United States v. Keresztury, 293 F.3d 750, 756–
57 (5th Cir. 2002). Although the parties disagree on the applicable standard
of review, we need not resolve that issue because Gage cannot make the
requisite showing under either a plain-error or de novo standard. See United
States v. Le, 512 F.3d 128, 132 (5th Cir. 2007).
Gage contends the Government agreed to recommend to the sentencing
court: a 188-month sentence; and a three-point reduction for acceptance of
responsibility. “[W]hen a guilty plea rests in any significant degree on a
promise or agreement of the [Government], so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled”. United
States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993) (internal quotation marks
omitted). The proper inquiry is whether the Government’s conduct comports
with Gage’s reasonable understanding of the agreement. United States v.
Roberts, 624 F.3d 241, 245–46 (5th Cir. 2010). Gage “bears the burden of
demonstrating a breach of the agreement by a preponderance of the evidence”.
United States v. Loza-Gracia, 670 F.3d 639, 642 (5th Cir. 2012).
Regarding the length of sentence, Gage maintains the Government
undermined that agreement during the sentencing hearing, and “essentially
apologiz[ed]” for its leniency. Nevertheless, the record reflects the Government
offered an explanation for that recommendation, which was also set forth in
the plea agreement, but did not disavow, or apologize for, it. The Government
is not generally required to advocate enthusiastically for a particular
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Case: 15-20577 Document: 00513647291 Page: 3 Date Filed: 08/22/2016
No. 15-20577
sentencing recommendation, even where it has promised to make it. See
United States v. Benchimol, 471 U.S. 453, 455–57 (1985).
Additionally, the Government did not agree to recommend a three-point
reduction for acceptance of responsibility; instead, it agreed not to oppose
Gage’s anticipated request for such a reduction. A review of the sentencing
transcript shows the Government complied with that agreement; it stated
Gage had done enough to receive credit for acceptance of responsibility.
In sum, Gage has not met his burden of establishing the requisite breach.
See, e.g., United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).
AFFIRMED.
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