United States v. Antonio Jasper

USCA11 Case: 21-11326 Document: 43-1 Date Filed: 01/23/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11326
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO JASPER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:19-cr-00191-WTM-CLR-1
____________________
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2 Opinion of the Court 21-11326
Before LUCK, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Antonio Jasper appeals his below-guideline 88-month prison
sentence for possessing a firearm as a convicted felon. He argues
that the government breached its plea agreement by not recom-
mending a sentence at the low end of his guideline range. Because
Jasper didn’t object to the breach of his plea agreement, and any
breach did not affect his substantial rights, we affirm.
In June 2019, Savannah Police Department Officer Justin An-
derson was patrolling a motel parking lot at the request of the
owner. He noticed a parked car with the front door open and the
driver, who turned out to be Jasper, passed out in the front seat.
Officer Anderson approached the car to conduct a welfare check.
As he did so, he smelled marijuana coming from the car. Jasper
woke up, and Officer Anderson told him that he’d smelled mariju-
ana. Jasper admitted to having marijuana inside the car. When
Officer Anderson searched the car, he found the marijuana and a
scale, as well as a loaded .40-caliber pistol on the driver’s side floor
of the car. Officer Anderson then placed Jasper under arrest.
Jasper was indicted for possessing a firearm as a convicted
felon. In a written agreement, Jasper agreed to plead guilty to the
firearm charge in exchange for the government’s agreement to rec-
ommend a sentence at “the low-end of the guidelines range.”
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21-11326 Opinion of the Court 3
Jasper’s guideline range was 100 to 120 months’ imprison-
ment. He requested a downward variance to 21 months, and, at
his sentencing hearing, Jasper argued for a variance because: he
had a detailed reentry plan that included a job and a place to live;
he had a detailed business plan to start a barbecue food truck; he
had a sick stepmother and a younger sibling to take care of; he was
engaged; he accepted responsibility for his actions and showed re-
morse; and he wanted to start a nonprofit to help young kids with
difficult backgrounds. Jasper explained that he had matured since
his earlier felony convictions and he regretted the poor decisions
he’d made when he was younger.
The government, for its part, argued that a sentence “within
[the] guideline[] range, 100 to 120 months,” would allow “justice
[to] be meted out.” A guideline sentence was appropriate, the gov-
ernment said, because of Jasper’s criminal history and the uncer-
tainty of his future plans.
The district court sentenced Jasper to 88 months’ imprison-
ment. The court varied from the bottom of the guideline range, it
said, because Jasper had an established work history, he earned a
general equivalency diploma, and he had developed a reentry plan
after his sentence. Also, the district court explained, Jasper had re-
alized the seriousness of his offense, so a sentence within the guide-
lines wasn’t necessary to deter future criminal conduct.
At the end of the sentencing hearing, the district court asked
Jasper if he had “any objections to [its] findings of fact, conclusions
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4 Opinion of the Court 21-11326
of law, or [the] manner in which the sentence was pronounced.”
Jasper said that he didn’t.
Now, on appeal, Jasper argues that the government
breached its plea agreement by not recommending a sentence at
the low end of the guideline range as it promised. He concedes
that he did not raise the breach-of-plea-agreement issue in the dis-
trict court and that our review is for plain error.
Jasper is right. “[W]hen, as here, the defendant did not ob-
ject before the district court that the government breached a plea
agreement, we review on direct appeal for plain error.” United
States v. Malone, 51 F.4th 1311, 1318 (11th Cir. 2022). “We
find plain error when (1) an error has occurred, (2) the error was
plain, and (3) it affected the defendant’s substantial rights, and if
those prongs are met, we then have discretion to correct the error
if it (4) seriously affected the fairness of the judicial proceedings.”
Id. at 1319.
A defendant’s substantial rights are affected if the error “af-
fected the outcome of the district court proceedings.” Id. (quota-
tion marks omitted). This requires the defendant to show that
there is a “reasonable probability” that his sentence would be dif-
ferent. See United States v. Rodriguez, 398 F.3d 1291, 1299 (11th
Cir. 2005). “[W]here the effect of an error on the result in the dis-
trict court is uncertain or indeterminate—where we would have to
speculate—the appellant has not met his burden.” Id. at 1301. In
other words, “where the record does not provide any indication
that there would have been a different sentence” absent the error,
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21-11326 Opinion of the Court 5
“the party with the burden of showing a reasonable probability of
a different result loses.” Id. at 1304. A defendant is unable to satisfy
the substantial rights prong when the government breaches a plea
agreement but the defendant “obtained the benefits contemplated
by the deal anyway.” Puckett v. United States, 556 U.S. 129, 141–
42 (2009).
Jasper has failed to meet his burden of demonstrating that,
but for the breach, there was a “reasonable probability” that the
district court would have imposed a different sentence. See Rodri-
guez, 398 F.3d at 1299. The government’s breach of its promise to
recommend a sentence at the low end of the guideline range did
not prejudice Jasper because the district court ultimately varied
downward to impose a sentence twelve months below the low end
of the guideline range. Although the government breached the
plea agreement, Jasper essentially “obtained the benefits contem-
plated by the deal anyway.” See Puckett, 556 U.S. at 141–42. In-
deed, Jasper received more than he bargained for in his plea agree-
ment. See Malone, 51 F.4th at 1322 (defendant “cannot show that
the government’s breach of this aspect of the plea agreement vio-
lated his substantial rights because” the defendant got everything
“the government had agreed to recommend under this part of the
plea agreement”).
Jasper argues that he has shown a reasonable probability his
sentence was affected because the government emphasized his
criminal history. But the district court didn’t mention Jasper’s his-
tory as a reason for the 88-month sentence it imposed, so there’s
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6 Opinion of the Court 21-11326
no reason (other than speculation) to believe that it played a part
in the district court’s sentencing decision. And, in any event, the
government’s discussion of Jasper’s criminal history did not violate
the plea agreement. The government agreed to recommend a sen-
tence at the bottom of the guideline range. But the government
also agreed “to provide full and accurate information to the [dis-
trict] [c]ourt . . . for use in calculating the applicable [s]entencing
[g]uidelines.” It was not a breach of the plea agreement to provide
full and accurate information to the district court about Jasper’s
criminal history. And it was not a breach of the plea agreement to
advocate for a sentence above the 21 months Jasper was seeking.
The government agreed to recommend a 100-month sentence; it
did not agree to tie its hands at the sentencing hearing.
AFFIRMED.