# United States Court **of Appeals**  **f or 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 b y using information it obtained during his pre

- plea agreement interview to increase his guidelines sentencing

range.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fift h Circuit 

### FILED March 9, 2022 Lyle W. Cayce Clerk Case: 21-10674 Document: 00516231577 Page: 1 Date Filed: 03/09/2022No. 21

- 10674

2 At sentencing, Smith did not object on this basis

. I nstead, he conceded that this information could be used in calculating his guidelines range. Thus,

w e 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
29 8 (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 , 6 55 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 t he 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 o n the other hand, the very next sentence in Smith’s plea agreement s upports 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 increas e [his] Sentencing Guideline level.” (Emphasis added.) Since part of the plea agreement supports Smith, and part of the plea agreement oppose s Smith, the plea agreement is at least ambiguous on this issue . Even so, a ll 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)

. Case: 21-10674 Document: 00516231577 Page: 2 Date Filed: 03/09/2022No. 21

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3 Because Smith’s argument is not frivolous and is not foreclosed by published precedent, 1 t he 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 thi s 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. Case: 21-10674 Document: 00516231577 Page: 3 Date Filed: 03/09/2022