UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 15-1110 (D.C. No. 1:12-CR-00113-WYD-3) (D. Colo.) v.ELDER GEOVANY SABILLONUMANA, a/k/a Elder Umana, a/k/a Pablo Casillas, Defendant-Appellant.

ORDER AND JUDGMENT *

Before HOLMES , SEYMOUR , and PHILLIPS , Circuit Judges.

Elder Geovany Sabillon-Umana plead ed guilty to money laundering and conspiracy to distribute he roin and cocaine. He wa s sentenced to ninety-six months’ imprisonment, but we reversed a nd remanded that senten ce in an earlier

* The parties have not requested oral argument, and upon examining the briefs and appellate r ecord, this panel has decide d that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is theref ore ordered subm itted without oral argument. This order and judgment is not bi nding precedent, ex cept under the doctrines of law of the case, res judicata, and coll ateral estoppel. It may be cited, however, for its persuasive value consis tent with Federal Rule of Appellate Procedure 32.1 and Tent h Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 29, 2016
Elisabeth A. Shumaker Clerk of Court-2- appeal. On remand, the di strict court resentenced M r. Sabillon-Umana to eightyfour months’ imprisonment. He now appeals, argui ng that during resentencing proceedings, the government breached hi s plea agreement in two respects. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm the judgment of the district court.
I In 2011 and 2012, Mr. Sabillon-Umana di stributed heroin and cocaine for a drug distribution organiza tion (“DTO”) run by a man known as “Gordo.” R., Vol. I, at 21 (Plea Agre ement, filed Oct. 23, 2012). Mr. Sabillon-Umana eventually entered a plea agreement under which he pleaded guilty to money laundering and conspir acy to distribute he roin and cocaine. The plea agreement pr ovided for a potential substantial-assistance downward departure. More specifically, the agre ement provided that Mr. Sabillon-Umana “underst[ood] and agree[d]” that, if he desired the government’s consideration of a potentia l 18 U.S.C. § 3353(e) and U. S.S.G. § 5K1.1 motion for downward departure, he w ould be “required to cooperate fu lly” by “providing truthful and complete information and testimony,” a ppearing at required judicial proceedings, and agreeing to continuances of his sentencing hearing until his testimony had been provided. Id. at 14–15. The agreement also provided that the government expressly “r eserve[d] the sole ri ght to evaluate the nature and extent of the defendant’s cooperati on and to make the defendant ’s cooperation, or lack thereof, known to the Court at the time of sentencing, ” making clear that “in the-3- exercise of [the government’s] discre tion,” the government “may make a [18 U.S.C. § 3353(e) and U. S.S.G. § 5K1.1] motion . . . reflecting that the defendant . . . provided substa ntial assistance.” Id. at 15. In exchange for Mr. Sabillon-Uman a’s substantial assistance, the agreement stated that the government “anticipate[d]” that a § 5K1.1 motion would ask the court “to impos e a sentence as much as 40% below the bottom of the otherwise applicable Guidelines sent encing range,” assuming that the judicial process allowed Mr. Sabillon-Umana to fully demons trate his assistance to law enforcement. Id. Furthermore, the agreement re iterated in the “GUIDELINES PREDICTION” section that “the Governme nt anticipate[d] as king the Court to reduce the defendant’s sent ence by up to 40% (measured from the bottom of the otherwise applicable Sentencing Guide line range) for substantial assistance.” Id. at 43–44 (emphasis omitted). Before Mr. Sabillon-Umana’s initial sentencing hearing, the government filed a substantial-assistance motion in which it “request [ed] a departure from the otherwise applicable Sentencing Guide lines range and the ten year statutory minimum mandatory sentence for [the c onspiracy charge], a nd from the otherwise applicable Sentencing Gu idelines range for [the money laundering charge].” Id. at 94 (Gov’t’s § 5K1.1 Mot., filed June 27, 2013). In its motion, the government requested a sentence of 108 months’ imprisonment; how ever, at the subsequent initial sentencing hearing, the government changed it s recommendation to a range-4- of 96 to 120 months’ imprisonment. 1 See Supp. R., Vol. II, at 165 (Tr. of Sentencing Hr’g, dated Aug. 15, 2013) (cour t stating that “[i] n the motion, . . . the Government asked that I grant th e downward departure under 5K1.1, and 18 [U.S.C. §] 3553(e), and impose a sent ence of 108 months. However, [the government], within the last 30 minutes, m odified the motion to indicate that the Court had a sentencing range of 96 months, to, . . . 120 months”); see also id. at 159 (government amending th e downward-departure reque st stating that Mr. Sabillon-Umana’s debrie fing testimony was “full of prevarication”). 2 At the initial sentencing h earing, the district court calculated a Guidelines range of 121 to 151 months’ imprisonmen t, and observed th at the statutory mandatory minimum sentence was 120 mont hs’ imprisonment. The court granted the government’s s ubstantial-assistan ce motion and sentenced Mr. SabillonUmana to ninety-six months’ imprisonmen t, below the bottom of the Guidelines range of 121 months’ impris onment. We reversed and remanded that sentence on appeal. See United States v. Sabillon-Umana , 772 F.3d 1328, 1335 (10th Cir. 2014).

1 The Presentence Investig ation Report (“PSR”) fi led six days before the government’s substa ntial-assistance mo tion calculated a Gu idelines range of 240 to 262 months’ imprisonment.

2 As grounds for its do wnward-departure re quest, the government stated in its motion that Mr. Sabillon- Umana “ha[d] appeared and met to be debriefed with staff of th e office of the United States Attorney, Special Agents, and Task Force Officers,” and that he “ha[d] indicated he would testify to the best of his ability at trial if called upon to do so.” R., Vol. I, at 94.-5- During resentencing proceedings on remand, the government did not request a forty-percent dow nward departure from the bo ttom of the Guidelines range. Instead, in a “Sta tement Concerning [the] Re-S entencing of [Mr. SabillonUmana]” filed before the re sentencing hearing, R., Vol. I, at 104 (filed Mar. 3, 2015), the government recommende d a substantial-as sistance depart ure to a range of 96 to 120 months (the same reco mmendation it had made at the initial sentencing hearing), noting that “[a] 96 month term of imprisonment would represent a downward departure of 20% from the 120 month statutory minimum mandatory sentence,” 3 id. at 114. In its pre-hear ing Statement, the government made clear that Mr. Sabill on-Umana’s “5K1.1 debriefi ng was difficult” because “he generally limited his remarks and went no further than the information already disclosed in discove ry he had been provided w ith in the case, and his utility as a witness would have been hampered by his unwillingness to admit the extent and nature of his involvement in narc otics trafficking.” Id. at 114–15. At the subsequent rese ntencing hearing, the govern ment clarified that it believed that Mr. Sabillon- Umana’s sentence should be ninety-six months. The government explained that this determination was “based on the statutory mandatory, the thought . . . wa s to give a person a couple of years off, a couple of

3 The Addendum to the PSR filed dur ing resentencing proceedings calculated a Guidelines ra nge of 97 to 121 months’ im prisonment, and noted that the statutory mandatory minimum senten ce was 120 months’ imprisonment. The government’s low-end recommendation of ni nety-six months di d not represent a forty-percent departur e from the bottom of th at Guidelines range.-6- years benefit for allowi ng us to basically indi cate for the fact th at he did sign this plea agreement.” R., Vol. III, at 30. The government continued that it “did not think of [the downward depa rture] as a percentage o ff of any particular number necessarily,” and that instead, it “was thinking about one year or two years off of [the 120-month statutory mandat ory minimum] sentence.” Id. at 32. In addition, the government reiterated that Mr. Sa billon-Umana’s “debriefing was pretty atrocious. It was very diff icult, hard going. The defe ndant did a lot to minimize his own involvement in anyt hing. And . . . he was un truthful, incomplete, with regard to other things.” Id. at 30–31. In fact, based on Mr . Sabillon-Umana’s debriefing testimony, the government stated that it had “seriously considered not giving him any 5K at all.” Id. at 31. At the resentencing heari ng, the district court re newed its ruling granting the § 5K1.1 substantial-assistance motion that the government had filed in the initial sentencing proceedings. Id. at 28 (Tr. of Sentenci ng Hr’g, dated Mar. 18, 2015) (“[A]t the prior sentencing hearin g I had granted the Government’s 5K motion . . . . I will reaf firm the granting of that motion for purposes of this resentencing so that there’ s no ambiguity about that.”). Accordingly, the court stated that it would “depart downward fr om the guideline range and . . . impose a sentence below the minimu m sentence required by statute [of 120 months].” Id. at 64. The court calculated a Guid elines range of 97 to 121 months’ imprisonment. Then, it departed downwar d to a sentence of eighty-four months’ imprisonment.-7- Not only did the plea agreement pr ovide for a potenti al substantialassistance downward departure, but it also provided for a potential minor-role decrease. Specifica lly, the agreement stated: “t he Government submits there should be a two level decrease for [playing a] minor ro le in the of fense if the Court takes a broad view of the GORDO DTO conspiracy becau se the defendant [wa]s a subordinate in relati on to . . . GORDO, the activ ity of the conspiracy was extensive, and the activity i nvolved more than 10 persons.” R., Vol. I, at 41. During the initial sentencing proceedi ngs, however, the PSR did not apply a minor-role decrease in ca lculating Mr. Sabillon-Uman a’s offense level. The PSR explained: the defendant’s role wa s more than an “average participant” in the organization. The case agen t informed that the defendant was [Gordo’s] “right hand man.” The factual basis of the plea agreement notes that defendant lent “managerial assistance to [Gordo].” Furthermore, he was entrusted with the wire transfer of $44,000, which he tr ansferred to his Honduran bank account. On occasion, the defe ndant sourced the Gordo DTO with cocaine drug supplies obta ined from another DTO. His contributions to the DTO were in tegral to the success of the organization. R., Vol. II, at 62. Simila rly, at the initial sentenci ng hearing, the government argued that the minor-role decrease was not appropria te “[i]f you look at what happened here in Colorado, which is how the probation officers looked at it,” instead of taking a “very tele scopic, very far away view of [the conspiracy].” Supp. R., Vol. II, at 138. In line with both the gove rnment’s recommendation and the PSR’s calculation, at th e initial sentencing hearing, the distri ct court used the-8- PSR to calculate the offens e level without the minor-role reduction. However, at resentencing, the minor-role decrease was not discussed at all, and the court did not apply it in calcul ating Mr. Sabillon-Uman a’s offense level. See R., Vol. III, at 63 (noting that “there are no adju stments for role in the offense”). This appeal followed.
II Mr. Sabillon-Umana argues that dur ing resentencing proceedings, the government breached the plea agreemen t by: (1) not recommending a downward departure from the bottom of the Guidelines range in it s substantial-assistance motion, and (2) not arguing for a minor-role decrease in offense level. We address each of these clai ms in turn, and affirm. A Mr. Sabillon-Umana firs t argues that the governme nt breached the plea agreement by not seeking a substantial-as sistance departure calculated from the bottom of the Guidelines ra nge. Below, we conclude that the government did not breach the plea agreement with regard to its substantial-as sistance departure recommendation.
1 As a preliminary matter, th e parties disagree about the applicable standard of review. Mr. Sabillon- Umana argues that we shoul d review de novo whether the government breached the plea agreement. See, e.g. , United States v. Rodriguez-Rivera , 518 F.3d 1208, 1212 (10th Ci r. 2008). The government-9- responds that we should review only for plain error because, although Mr. Sabillon-Umana argued below that “the bottom of the guidelines range was the proper starting point for the departure . . . he never cl aimed that the government breached the plea agreement. ” Aplee.’s Br. at 8. We sidestep this dispute concerning the proper standard of review because we conclude that even applying de novo review, Mr. Sabillon-Umana cannot prevail on the merits.
2 Even applying de novo review, Mr. Sabillon-Umana cannot prevail on the merits. Under the plain la nguage of the plea agreemen t, the government did not unequivocally promise to re commend a departure of a certain percentage below the bottom of the Gu idelines. Instead, the govern ment retained discretion to evaluate Mr. Sabillon-Uman a’s cooperation, and that evaluation ultimately resulted in a less favorable dow nward-departure recommendation. Mr. Sabillon-Umana argues that “the government breached its promise to request a percentage re duction and departure base d on the bottom of the applicable guidelines’ range .” Aplt.’s Opening Br. at 8 (capitalization and emphasis altered). He poi nts to the plea agreemen t’s language that “the Government anticipates asking the Cour t to reduce the Defe ndant’s sentence by up to 40% (measured from th e bottom of the otherwise applicable Sentencing Guideline range) for substantial assistan ce.” R., Vol. I, at 44. Mr. SabillonUmana argues that despite this language, the governme nt did not argue for a-10- downward departure from the bottom of the Guidelines range, but instead asked for “a couple of years off of the statutory mandatory minimum sentence” of 120 months. Aplt.’s Opening Br. at 10 (citi ng R., Vol. III, at 30 (stating that the government’s recommended downward de parture was “based on the statutory mandatory, the thought . . . wa s to give a person a couple of years off, a couple of years benefit for allowi ng us to basically indi cate for the fact th at he did sign this plea agreement”)). In Mr. Sabillon-Umana’s view, “[ t]he government’s failure to recommend a sentence where the basis of th e substantial assistance departure was calculated from the botto m of the Guidelines’ ra nge breached the plea agreement’s plain language” b ecause “pursuant to . . . the plea agreement, the government was required to recommend” such a departur e. Aplt.’s Opening Br.
at 10. Mr. Sabillon-Umana’s brie f, however, cites little in the way of legal authority to support his posit ion. Besides noting that 18 U.S.C. § 3553(e) allows a departure below th e statutory minimum, he cites only to United States v.
VanDam , 493 F.3d 1194, 1199 (10th Cir. 2007). 4 In VanDam , we stated that: General principles of contra ct law define the content and scope of the government’s obligat ions under a plea agreement.

4 The only other legal aut hority cited in this se ction of Mr. SabillonUmana’s brief is United States v. Mendoza-Haro , 595 F. App’x 829, 833 (10th Cir. 2014), which Mr. Sabill on-Umana cites for the propos ition that “a sentence reduced under § 3553(e) for substantial assistance cannot be further reduced based on the § 3553(a) factors. ” Aplt.’s Opening Br. at 10. Mr. Sabillon-Umana relies on Mendoza-Haro to argue that the reduction he seeks “is not prohibited double-dipping” under § 3553(a) and (e). Id. Prohibited double-dipping, however, is not at issue.-11- We thus look to the express language in the agreement to identify both the nature of th e government’s promise and the defendant’s reasonabl e understanding of this promise at the time of the entry of the gu ilty plea. We construe all ambiguities against the governme nt, to the extent it is the drafting party. We evaluate the record as a whole to ascertain whether the government comp lied with its promise. 493 F.3d at 1199 (citations omit ted). In that case, we held that the government had breached a plea agreement because its “unambiguous lan guage” required the government to recommend a sentence “a t the low end of the guideline range found applicable,” but the government did not do so. Id. at 1199 (quoting the record). Instead, the gove rnment recommended a sentence at the low end of the range that it believed was applicable, even after the court held otherwise. Thus, we concluded that the gove rnment had “directly cont ravened” its obligations under the plea agreement. Id. at 1200. In the present case, however, M r. Sabillon-Umana ca nnot point to any unambiguous language in th e plea agreement that the government directly contravened. As the govern ment points out, the releva nt portions of the plea agreement state only that the government “anticipate[d]” ma king a substantialassistance motion recommending a fort y-percent downward departure from the bottom of the Guidelines ra nge. R., Vol. I, at 15; id. at 44. Moreover, the agreement expressly conditioned any s ubstantial-assistance motion on the government’s assessment of M r. Sabillon-Umana’s cooperation. See id. at 15 (stating that the defendant “underst[ood] and agree[d]” th at, in order to secure a substantial-assistan ce departure recommendation, he would be required to-12- “cooperate fully” by, inter alia , “providing truthful and complete information and testimony”); id. (stating that the government “r eserve[d] the sole right to evaluate the nature and ex tent of the defenda nt’s cooperation,” and that, “in the exercise of its discretion, ” it “may make a motion . . . reflecting that the defendant . . . provide d substantial assistance”). Cr itically, the government later determined that Mr. Sabillon-Umana ha d provided little as sistance to law enforcement. See, e.g. , id. at 114–15 (stating that M r. Sabillon-Umana’s “5K1.1 debriefing was difficult” because “he ge nerally limited his remarks and went no further than the info rmation already disclosed in di scovery he had been provided with in the case, and his utility as a witness would have been hampered by his unwillingness to admit the extent and natu re of his involvement in narcotics trafficking”). Thus, there is no reason to conclude that the govern ment failed to fulfill any promise in the plea agreement or contravened the defendant’ s reasonable understanding of any promise. See VanDam , 493 F.3d at 1199–1200. We therefore reject Mr. Sabi llon-Umana’s first argument. 5

5 Mr. Sabillon-Umana also briefly ar gues that the dist rict court “was confused” about whet her it could “depart downwar d from the Guideline range,” and that, for this reason, we should “clarify what happens” when a “plea agreement . . . requires ” a substantial-assistance de parture below the bottom of a Guidelines range. Aplt.’s Opening Br. at 12 (emphasi s added). However, we need not address this i ssue because the plea agre ement contained no such requirement in this ca se; it merely describe d what the government anticipated it would do, assuming Mr. Sabill on-Umana fully cooperated.-13- B In his second claim, Mr. Sabillon- Umana argues that “the government breached the plea agreement by not re commending a two-leve l reduction for Mr. Sabillon’s minor role in the conspiracy.” Aplt.’s Opening Br. at 13 (capitalization and emphasis altered). Applying plain-er ror review, we conclude that the district court did not err, much less plainly, in failing to find a breach because there was no binding obligati on for the government to recommend the minor-role downward adjustment.
1 The parties again disagree about the applicable st andard of review. Mr. Sabillon-Umana acknowledges that he did not make an objection concerning this issue at the resentencing hearing, but maintains th at de novo review applies regardless of whether the issue was preserved. See Aplt.’s Opening Br. at 13 (citing VanDam , 493 F.3d at 1199 (“This Court reviews de novo the question of whether the government has breached a plea agreement, even when the defendant fails to preserve this obj ection below.”)). However, as the government points
out, VanDam ’s standard-of-review holding is no longer good law; it was overturned by the Supreme Cour t’s subsequent decision in Puckett v. United
States , 556 U.S. 129, 133 ( 2009). And, since Puckett , we have applied a plainerror standard in the breach-o f-plea-agreement context. See United States v. Mendoza , 698 F.3d 1303, 1309 (10th Cir. 2012); see also United States v. Willis , 607 F. App’x 788, 790–91 (10th Cir. 2015).-14- Mr. Sabillon-Umana’s reply brief does not address this point, nor does it argue that the district cour t plainly erred. Accordingl y, we could determine that Mr. Sabillon-Umana has waived any argume nt for plain error, and decline to reach the merits of th is issue at all. See, e.g. , United States v. Ibarra-Diaz , 805 F.3d 908, 916 n.3 (10th Cir. 2015); United States v. Zander , 794 F.3d 1220, 1232 n.5 (10th Cir. 2015); Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1130–31 (10th Cir. 2011). Nevertheless, we exercise our discretion to reach the merits of Mr. Sabillon-Umana’s minor-role argument , and review for plain error. See IbarraDiaz , 805 F.3d at 916 n.3.
2 Under plain-error review, Mr. Sabill on-Umana must show “(1) error, (2) that is plain, which (3) af fects substantial ri ghts, and which (4) seriously affects the fairness, integrity, or public re putation of judicial proceedings.” Mendoza , 698 F.3d at 1309 (quoting United States v. Weiss , 620 F.3d 1263, 1274 (10th Cir. 2010)). Mr. Sabillon-Umana has failed, howev er, to demonstrate any error, much less one that is plain, a nd we therefore reso lve this issue under the first prong of the plain-error test. Mr. Sabillon-Umana argues that the gove rnment failed to seek a two-level reduction for his minor role in the conspiracy, despite having promised to do so in the plea agreement. See Aplt.’s Opening Br. at 13 (c iting R., Vol. I, at 41 (stating that “the Government submits there shoul d be a two level decrease for [a] minor role in the offense”)) . His brief, however, ignor es other pertinent language-15- in the plea agreement. Re ad in full, the relevant pr ovision of the plea agreement states: “the Government s ubmits there should be a tw o level decrea se for [a] minor role in the offense if the Court takes a br oad view of the GORDO DTO conspiracy because the defendant [wa]s a subordinate in relation to . . . GORDO, the activity of the co nspiracy was extensiv e, and the activity involved more than 10 persons.” R., Vol. I, at 41 (emphasis added). As this language makes clear, the government’s promise regarding the minor-role adjustment was conditioned on the court taking a broad view of the conspiracy. At both initial sentencing and resentencing, the distri ct court did not take a broad view of the conspira cy. More specifically, th e court held Mr. SabillonUmana accountable for only his direct drug involvement—not the larger conspiracy. See, e.g. , Supp. R., Vol. II, at 131 (at initial sentencing hearing, court stating that “it would be just wrong . . . to attri bute all of the drug quantities that are associated with th e conspiracy with Mr. [Sabill on-]Umana”); R., Vol. III, at 59–60 (at resentencing, c ourt stating that, “I reje ct as not supported by the facts in this case the Govern ment’s assertion that all of the drugs that were a part of the conspiracy in this cas e should be attributable to this defendant. I just don’t believe that there is a factual basis for me to make that finding.”). The government argues that as a consequence, it wa s not required to seek a minor-role reduction under the plain lang uage of the plea agreem ent. Mr. Sabillon-Umana offers no explanation as to why that is incorrect. Give n the view that the court took of the conspiracy, we conclude that the govern ment was under no obligation-16- to request a minor-role reduc tion. Thus, we hold that the district court did not err, much less plainly, in failing to find that the go vernment breached the plea agreement. III For the foregoing reasons, we AFFIRM the district court’s judgment.

ENTERED FOR THE COURT

Jerome A. Holmes Circuit Judge