United States Court of Appeals

for the Fifth Circuit

No. 21-10674

United States of America, 

Plaintiff—Appellee,

versus

Eric Ray Smith, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CR-314-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Eric Ray Smith appeals his conviction and sentence for possession 

with intent to distribute methamphetamine. He contends that the 

Government breached his plea agreement by using information it obtained 

during his pre-plea agreement interview to increase his guidelines sentencing 

range. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2022

Lyle W. Cayce

Clerk

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2

At sentencing, Smith did not object on this basis. Instead, he conceded 

that this information could be used in calculating his guidelines range. Thus, 

we review for plain error only. See Puckett v. United States, 556 U.S. 129, 135 

(2009); United States v. Cluff, 857 F.3d 292, 297 (5th Cir. 2017). We apply

general principles of contract law in interpreting a plea agreement and 

consider “whether the [G]overnment’s conduct is consistent with the 

defendant’s reasonable understanding of the agreement.” Cluff, 857 F.3d at

298 (internal quotation marks and citation omitted). The defendant has the 

burden of proving by a preponderance of the evidence the underlying facts 

that establish a breach. United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 

2011).

Smith’s plea agreement is no model of contract draftsmanship. On the 

one hand, it specifies that “USSG § 1B1.8 is applicable to [Smith].” That 

might be fatal to Smith’s argument. That is because the Sentencing 

Guideline’s § 1B1.8 expressly provides that the Government may use 

information “known” to it “prior to entering into” the plea agreement. U.S. 

Sent’g Guidelines Manual § 1B1.8(b)(1). But on the other hand, the 

very next sentence in Smith’s plea agreement supports him. That sentence 

expressly provides that “[a]ny information provided by [Smith], other than 

that charged in the Indictment, in connection with [Smith’s] assistance to the 

government, including debriefing and testimony, will not be used to increase 

[his] Sentencing Guideline level.” (Emphasis added.) Since part of the plea 

agreement supports Smith, and part of the plea agreement opposes Smith, 

the plea agreement is at least ambiguous on this issue. Even so, all that means 

is that the plea agreement’s scope on this issue is “subject to reasonable 

dispute.” Puckett, 556 U.S. at 135. And that is not good enough to satisfy the 

plain-error standard. See id. (requiring a “clear or obvious” error); Cluff, 857 

F.3d at 297 (same).

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Because Smith’s argument is not frivolous and is not foreclosed by 

published precedent,1 the Government’s motion for summary affirmance is 

DENIED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 

1969). Because there is no clear or obvious error on this record, we AFFIRM

the judgment of the district court and DENY the Government’s alternative 

motion for an extension of time as moot.

1 The Government argues that our unpublished decision in United States v. Regan, 

831 F. App’x 743 (5th Cir. 2020), forecloses Smith’s argument. We disagree since 

“[u]npublished opinions issued on or after January 1, 1996[] are not precedent,” save for 

limited circumstances. 5th Circuit Rule 47.5.4.

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