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 pleaded guilty to money laundering and 

conspiracy to distribute heroin and cocaine. He was sentenced to ninety-six 

months’ imprisonment, but we reversed and remanded that sentence in an earlier 

 * The parties have not requested oral argument, and upon examining 

the briefs and appellate record, this panel has decided 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 therefore ordered submitted without 

oral argument. 

 This order and judgment is not binding precedent, except under the 

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, 

however, for its persuasive value consistent with Federal Rule of Appellate 

Procedure 32.1 and Tenth Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 29, 2016

Elisabeth A. Shumaker 

Clerk of Court
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appeal. On remand, the district court resentenced Mr. Sabillon-Umana to eightyfour months’ imprisonment. He now appeals, arguing that during resentencing 

proceedings, the government breached his 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 distributed heroin and cocaine for a 

drug distribution organization (“DTO”) run by a man known as “Gordo.” R., 

Vol. I, at 21 (Plea Agreement, filed Oct. 23, 2012). Mr. Sabillon-Umana 

eventually entered a plea agreement under which he pleaded guilty to money 

laundering and conspiracy to distribute heroin and cocaine. 

The plea agreement provided for a potential substantial-assistance 

downward departure. More specifically, the agreement provided that Mr. 

Sabillon-Umana “underst[ood] and agree[d]” that, if he desired the government’s 

consideration of a potential 18 U.S.C. § 3353(e) and U.S.S.G. § 5K1.1 motion for 

downward departure, he would be “required to cooperate fully” by “providing 

truthful and complete information and testimony,” appearing 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 “reserve[d] the sole right to evaluate the nature and extent 

of the defendant’s cooperation and to make the defendant’s cooperation, or lack 

thereof, known to the Court at the time of sentencing,” making clear that “in the 
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exercise of [the government’s] discretion,” the government “may make a [18 

U.S.C. § 3353(e) and U.S.S.G. § 5K1.1] motion . . . reflecting that the defendant 

. . . provided substantial assistance.” Id. at 15. 

In exchange for Mr. Sabillon-Umana’s substantial assistance, the 

agreement stated that the government “anticipate[d]” that a § 5K1.1 motion 

would ask the court “to impose a sentence as much as 40% below the bottom of 

the otherwise applicable Guidelines sentencing range,” assuming that the judicial 

process allowed Mr. Sabillon-Umana to fully demonstrate his assistance to law 

enforcement. Id. Furthermore, the agreement reiterated in the “GUIDELINES 

PREDICTION” section that “the Government anticipate[d] asking the Court to 

reduce the defendant’s sentence by up to 40% (measured from the bottom of the 

otherwise applicable Sentencing Guideline 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 Guidelines range and the ten year statutory 

minimum mandatory sentence for [the conspiracy charge], and from the otherwise 

applicable Sentencing Guidelines 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; however, at the subsequent 

initial sentencing hearing, the government changed its recommendation to a range 
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of 96 to 120 months’ imprisonment.1

 See Supp. R., Vol. II, at 165 (Tr. of 

Sentencing Hr’g, dated Aug. 15, 2013) (court stating that “[i]n the motion, . . . 

the Government asked that I grant the downward departure under 5K1.1, and 18 

[U.S.C. §] 3553(e), and impose a sentence of 108 months. However, [the 

government], within the last 30 minutes, modified the motion to indicate that the 

Court had a sentencing range of 96 months, to, . . . 120 months”); see also id. at 

159 (government amending the downward-departure request stating that Mr. 

Sabillon-Umana’s debriefing testimony was “full of prevarication”).2

 

At the initial sentencing hearing, the district court calculated a Guidelines 

range of 121 to 151 months’ imprisonment, and observed that the statutory 

mandatory minimum sentence was 120 months’ imprisonment. The court granted 

the government’s substantial-assistance motion and sentenced Mr. SabillonUmana to ninety-six months’ imprisonment, below the bottom of the Guidelines 

range of 121 months’ imprisonment. 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 Investigation Report (“PSR”) filed six days before 

the government’s substantial-assistance motion calculated a Guidelines range of 

240 to 262 months’ imprisonment. 

2 As grounds for its downward-departure request, the government 

stated in its motion that Mr. Sabillon-Umana “ha[d] appeared and met to be 

debriefed with staff of the 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. 
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During resentencing proceedings on remand, the government did not 

request a forty-percent downward departure from the bottom of the Guidelines 

range. Instead, in a “Statement Concerning [the] Re-Sentencing of [Mr. SabillonUmana]” filed before the resentencing hearing, R., Vol. I, at 104 (filed Mar. 3, 

2015), the government recommended a substantial-assistance departure to a range 

of 96 to 120 months (the same recommendation 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-hearing Statement, the government 

made clear that Mr. Sabillon-Umana’s “5K1.1 debriefing was difficult” because 

“he generally limited his remarks and went no further than the information 

already disclosed in discovery 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 nature of his involvement in narcotics trafficking.” Id. at 114–15. 

 At the subsequent resentencing hearing, the government 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 . . . was to give a person a couple of years off, a couple of 

 3 The Addendum to the PSR filed during resentencing proceedings 

calculated a Guidelines range of 97 to 121 months’ imprisonment, and noted that 

the statutory mandatory minimum sentence was 120 months’ imprisonment. The 

government’s low-end recommendation of ninety-six months did not represent a 

forty-percent departure from the bottom of that Guidelines range. 
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years benefit for allowing us to basically indicate for the fact that he did sign this 

plea agreement.” R., Vol. III, at 30. The government continued that it “did not 

think of [the downward departure] as a percentage off of any particular number 

necessarily,” and that instead, it “was thinking about one year or two years off of 

[the 120-month statutory mandatory minimum] sentence.” Id. at 32. In addition, 

the government reiterated that Mr. Sabillon-Umana’s “debriefing was pretty 

atrocious. It was very difficult, hard going. The defendant did a lot to minimize 

his own involvement in anything. And . . . he was untruthful, 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 hearing, the district court renewed its ruling granting 

the § 5K1.1 substantial-assistance motion that the government had filed in the 

initial sentencing proceedings. Id. at 28 (Tr. of Sentencing Hr’g, dated Mar. 18, 

2015) (“[A]t the prior sentencing hearing I had granted the Government’s 5K 

motion . . . . I will reaffirm 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 from the guideline range and . . . impose a 

sentence below the minimum sentence required by statute [of 120 months].” Id. 

at 64. The court calculated a Guidelines range of 97 to 121 months’ 

imprisonment. Then, it departed downward to a sentence of eighty-four months’ 

imprisonment. 
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Not only did the plea agreement provide for a potential substantialassistance downward departure, but it also provided for a potential minor-role 

decrease. Specifically, the agreement stated: “the Government submits there 

should be a two level decrease for [playing a] minor role in the offense if the 

Court takes a broad view of the GORDO DTO conspiracy because the defendant 

[wa]s a subordinate in relation to . . . GORDO, the activity of the conspiracy was 

extensive, and the activity involved more than 10 persons.” R., Vol. I, at 41. 

During the initial sentencing proceedings, however, the PSR did not apply 

a minor-role decrease in calculating Mr. Sabillon-Umana’s offense level. The 

PSR explained: 

the defendant’s role was more than an “average participant” in 

the organization. The case agent 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 transferred to his Honduran bank 

account. On occasion, the defendant sourced the Gordo DTO 

with cocaine drug supplies obtained from another DTO. His 

contributions to the DTO were integral to the success of the 

organization. 

R., Vol. II, at 62. Similarly, at the initial sentencing hearing, the government 

argued that the minor-role decrease was not appropriate “[i]f you look at what 

happened here in Colorado, which is how the probation officers looked at it,” 

instead of taking a “very telescopic, very far away view of [the conspiracy].” 

Supp. R., Vol. II, at 138. In line with both the government’s recommendation and 

the PSR’s calculation, at the initial sentencing hearing, the district court used the 
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PSR to calculate the offense 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 calculating Mr. Sabillon-Umana’s offense level. See R., Vol. III, 

at 63 (noting that “there are no adjustments for role in the offense”). 

 This appeal followed. 

II

 Mr. Sabillon-Umana argues that during resentencing proceedings, the 

government breached the plea agreement by: (1) not recommending a downward 

departure from the bottom of the Guidelines range in its substantial-assistance 

motion, and (2) not arguing for a minor-role decrease in offense level. We 

address each of these claims in turn, and affirm.

A

 Mr. Sabillon-Umana first argues that the government breached the plea 

agreement by not seeking a substantial-assistance departure calculated from the 

bottom of the Guidelines range. Below, we conclude that the government did not 

breach the plea agreement with regard to its substantial-assistance departure 

recommendation. 

1 

As a preliminary matter, the parties disagree about the applicable standard 

of review. Mr. Sabillon-Umana argues that we should review de novo whether 

the government breached the plea agreement. See, e.g., United States v. 

Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). The government 
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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 claimed 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 language of the plea agreement, the government did not 

unequivocally promise to recommend a departure of a certain percentage below 

the bottom of the Guidelines. Instead, the government retained discretion to 

evaluate Mr. Sabillon-Umana’s cooperation, and that evaluation ultimately 

resulted in a less favorable downward-departure recommendation. 

 Mr. Sabillon-Umana argues that “the government breached its promise to 

request a percentage reduction and departure based on the bottom of the 

applicable guidelines’ range.” Aplt.’s Opening Br. at 8 (capitalization and 

emphasis altered). He points to the plea agreement’s language that “the 

Government anticipates asking the Court to reduce the Defendant’s sentence by 

up to 40% (measured from the bottom of the otherwise applicable Sentencing 

Guideline range) for substantial assistance.” R., Vol. I, at 44. Mr. SabillonUmana argues that despite this language, the government did not argue for a 
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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 (citing R., Vol. III, at 30 (stating that the 

government’s recommended downward departure was “based on the statutory 

mandatory, the thought . . . was to give a person a couple of years off, a couple of 

years benefit for allowing us to basically indicate for the fact that 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 the substantial assistance departure was 

calculated from the bottom of the Guidelines’ range breached the plea 

agreement’s plain language” because “pursuant to . . . the plea agreement, the 

government was required to recommend” such a departure. Aplt.’s Opening Br. 

at 10. 

 Mr. Sabillon-Umana’s brief, however, cites little in the way of legal 

authority to support his position. Besides noting that 18 U.S.C. § 3553(e) allows 

a departure below the 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 contract law define the content and 

scope of the government’s obligations under a plea agreement. 

 4 The only other legal authority cited in this section of Mr. SabillonUmana’s brief is United States v. Mendoza-Haro, 595 F. App’x 829, 833 (10th 

Cir. 2014), which Mr. Sabillon-Umana cites for the proposition 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. 
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We thus look to the express language in the agreement to 

identify both the nature of the government’s promise and the 

defendant’s reasonable understanding of this promise at the 

time of the entry of the guilty plea. We construe all 

ambiguities against the government, to the extent it is the 

drafting party. We evaluate the record as a whole to ascertain 

whether the government complied with its promise. 

493 F.3d at 1199 (citations omitted). In that case, we held that the government 

had breached a plea agreement because its “unambiguous language” required the 

government to recommend a sentence “at the low end of the guideline range 

found applicable,” but the government did not do so. Id. at 1199 (quoting the 

record). Instead, the government 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 government had “directly contravened” its obligations 

under the plea agreement. Id. at 1200. 

 In the present case, however, Mr. Sabillon-Umana cannot point to any 

unambiguous language in the plea agreement that the government directly 

contravened. As the government points out, the relevant portions of the plea 

agreement state only that the government “anticipate[d]” making a substantialassistance motion recommending a forty-percent downward departure from the 

bottom of the Guidelines range. R., Vol. I, at 15; id. at 44. Moreover, the 

agreement expressly conditioned any substantial-assistance motion on the 

government’s assessment of Mr. Sabillon-Umana’s cooperation. See id. at 15 

(stating that the defendant “underst[ood] and agree[d]” that, in order to secure a 

substantial-assistance departure recommendation, he would be required to 
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“cooperate fully” by, inter alia, “providing truthful and complete information 

and testimony”); id. (stating that the government “reserve[d] the sole right to 

evaluate the nature and extent of the defendant’s cooperation,” and that, “in the 

exercise of its discretion,” it “may make a motion . . . reflecting that the 

defendant . . . provided substantial assistance”). Critically, the government later 

determined that Mr. Sabillon-Umana had provided little assistance to law 

enforcement. See, e.g., id. at 114–15 (stating that Mr. Sabillon-Umana’s “5K1.1 

debriefing was difficult” because “he generally limited his remarks and went no 

further than the information already disclosed in discovery 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 nature of his involvement in narcotics 

trafficking”). 

 Thus, there is no reason to conclude that the government 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. Sabillon-Umana’s first argument.5

 

 5 Mr. Sabillon-Umana also briefly argues that the district court “was 

confused” about whether it could “depart downward from the Guideline range,” 

and that, for this reason, we should “clarify what happens” when a “plea 

agreement . . . requires” a substantial-assistance departure below the bottom of a 

Guidelines range. Aplt.’s Opening Br. at 12 (emphasis added). However, we 

need not address this issue because the plea agreement contained no such 

requirement in this case; it merely described what the government anticipated it 

would do, assuming Mr. Sabillon-Umana fully cooperated. 
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B

 In his second claim, Mr. Sabillon-Umana argues that “the government 

breached the plea agreement by not recommending a two-level reduction for Mr. 

Sabillon’s minor role in the conspiracy.” Aplt.’s Opening Br. at 13 

(capitalization and emphasis altered). Applying plain-error review, we conclude 

that the district court did not err, much less plainly, in failing to find a breach 

because there was no binding obligation for the government to recommend the 

minor-role downward adjustment. 

1

 The parties again disagree about the applicable standard of review. Mr. 

Sabillon-Umana acknowledges that he did not make an objection concerning this 

issue at the resentencing hearing, but maintains that 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 objection below.”)). However, as the government points 

out, VanDam’s standard-of-review holding is no longer good law; it was 

overturned by the Supreme Court’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-of-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). 
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 Mr. Sabillon-Umana’s reply brief does not address this point, nor does it 

argue that the district court plainly erred. Accordingly, we could determine that 

Mr. Sabillon-Umana has waived any argument for plain error, and decline to 

reach the merits of this 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. Sabillon-Umana must show “(1) error, (2) 

that is plain, which (3) affects substantial rights, and which (4) seriously affects 

the fairness, integrity, or public reputation 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, however, to demonstrate any error, much 

less one that is plain, and we therefore resolve this issue under the first prong of 

the plain-error test. 

 Mr. Sabillon-Umana argues that the government 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 (citing R., Vol. I, at 41 

(stating that “the Government submits there should be a two level decrease for [a] 

minor role in the offense”)). His brief, however, ignores other pertinent language 
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in the plea agreement. Read in full, the relevant provision of the plea agreement 

states: “the Government submits there should be a two level decrease for [a] 

minor role in the offense if the Court takes a broad view of the GORDO DTO 

conspiracy because the defendant [wa]s a subordinate in relation to . . . GORDO, 

the activity of the conspiracy was extensive, 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 district court did not take a 

broad view of the conspiracy. More specifically, the 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 attribute all of the drug quantities 

that are associated with the conspiracy with Mr. [Sabillon-]Umana”); R., Vol. III, 

at 59–60 (at resentencing, court stating that, “I reject as not supported by the 

facts in this case the Government’s assertion that all of the drugs that were a part 

of the conspiracy in this case 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 was not required to seek a minor-role 

reduction under the plain language of the plea agreement. Mr. Sabillon-Umana 

offers no explanation as to why that is incorrect. Given the view that the court 

took of the conspiracy, we conclude that the government was under no obligation 
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to request a minor-role reduction. Thus, we hold that the district court did not 

err, much less plainly, in failing to find that the government 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