United States v. Leal ( 2023 )

Case: 23-40119 Document: 00516976788 Page: 1 Date Filed: 11/22/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40119 FILED
Summary Calendar November 22, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alejandro Leal,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-1714-2
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam:*
Alejandro Leal appeals the sentence imposed following his conviction
for wire fraud. He argues that the Government breached the plea agreement
by highlighting evidence supporting an amount of restitution greater than the
amount contemplated in the plea agreement. He also contends that the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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district court erred by applying the enhancement for abuse of trust and
imposing a substantively unreasonable sentence.
“Whether the Government has breached the plea agreement is a legal
question that this Court reviews de novo.” United States v. Purser, 747 F.3d
284, 290 (5th Cir. 2014). Because Leal did not object to the purported breach
in the district court, our review is for plain error. To establish plain error,
Leal must demonstrate (1) an error (2) that is clear or obvious and (3) that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he meets the conditions above, we have the discretion to correct
the error but should do so only if it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. (alteration omitted).
We apply general principles of contract law in interpreting a plea
agreement and “consider whether the government’s conduct is consistent
with the defendant’s reasonable understanding of the agreement.” United
States v. Cluff, 857 F.3d 292, 298 (5th Cir. 2017) (internal quotation marks
and citation omitted). The defendant has “the burden of demonstrating the
underlying facts that establish breach by a preponderance of the evidence.”
United States v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).
The written plea agreement reflects that Leal agreed to pay
$344,642.57 in restitution. The Government did not make any agreements
regarding the restitution amount or the final sentence. The agreement did
not explicitly require the Government to argue for any restitution amount or
prevent the Government from arguing for restitution above the stated
amount.
The Government’s request for the district court to consider the victim
impact statements was appropriate given that crime victims have a right to be
reasonably heard at sentencing. See 18 U.S.C. § 3771(a)(4). The
Government never advocated for the restitution amount requested by the
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victims and instead recognized the amount of restitution stated in the plea
agreement and agreed that it was “sticking with” the plea agreement. These
statements were not inconsistent with a reasonable understanding of the
Government’s obligations in the plea agreement. See Cluff, 857 F.3d at 298;
United States v. Pizzolato, 655 F.3d 403, 410-11 (5th Cir. 2011). Moreover,
the district court’s refusal to follow recommendations in a plea agreement is
not a breach by the Government. See Santobello v. New York, 404 U.S. 257,
262 (1971). Leal has failed to establish that the Government breached the
plea agreement. See Roberts, 624 F.3d at 246.
Leal next contends that the district court erred when it applied an
enhancement for abuse of trust. Section 3B1.3 provides for a two-level
increase if “the defendant abused a position of public or private trust . . . in a
manner that significantly facilitated the commission or concealment of the
offense.” U.S.S.G. § 3B1.3. “We review the district court’s interpretation
and application of the Guidelines de novo and its factual findings for clear
error.” United States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017). Leal
must demonstrate plain error because he did object to the enhancement in
the district court. See Puckett, 556 U.S. at 135.
Although Leal contends that he was not in a position of trust because
he did not work in the health care field, he obtained a living trust over one of
the victims and designated himself as trustee. He then used the trust
documents to open a bank account and had the victim’s disability and
retirement funds directly deposited into the account. Only a person with
substantial discretionary judgment and minimal supervision could have taken
the amount of funds that Leal took and spent over the course of several years
without being discovered. See United States v. Ollison, 555 F.3d 152, 166 (5th
Cir. 2009). The district court’s finding that Leal occupied a position of trust
is plausible in light of the record as a whole. See Hernandez, 876 F.3d at 165.
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Finally, our substantive reasonableness review of Leal’s sentence is
guided by the sentencing factors listed in 18 U.S.C. § 3553(a). See United
States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). A sentence above the
advisory guidelines range is substantively unreasonable if it “(1) does not
account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” Id. at 708.
Contrary to Leal’s assertion, the district court did not reference the
occupation of Leal’s wife as a reason to upwardly vary from the guideline
range. The district court instead referenced her occupation in connection
with the imposition of a condition of supervised release. Leal has not shown
that his 60-month sentence was based on an improper or irrelevant factor or
that it is otherwise substantively unreasonable. See Smith, 440 F.3d at 708.
The district court’s judgment is AFFIRMED.
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