## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 97-3163 LESTER ERVIN SMITH, JR.,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 95-CR-40083-4)

Submitted on the briefs: Michael G. Katz, Federal Public Defender, and Jill M. Wichlens, Assistant Federal Public Defender, Denver, Colorado, for Defe ndant-Appellant. Jackie N. Williams, United States Attorney, and Gre gory G. Hough, Assistant United States Attorney, Topeka, Kansas, for Plainti ff-Appellee.

___________________________ Before ANDERSON , McKAY , andLUCERO , Circuit Judges.

___________________________ McKAY , Circuit Judge.

___________________________2

After examining the briefs and the appellate record , this panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Pursuant to a plea agreement, Defendant, Mr. LesterErvin Smith, pled guilty to one count of conspiracy to possess with i ntent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 8 46. The plea agreement stipulated that the government would: (1) recommen d that Defendant receive a three-level reduction for acceptance of responsibil ity pursuant to U.S. Sentencing Guideline (U.S.S.G.) § 3E1.1; (2) recommend that De fendant receive a two-level reduction for his minor role in the offense pursuant to U.S.S.G. § 3B1.2; (3) recommend that Defendant not receive a two-level en hancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) r ecommend that Defendant not receive a two-level sentence enhancement for obstru ction of justice pursuant to U.S.S.G. § 3C1.1; and (5) if appropriate, file a mo tion for a substantial assistance departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C . § 3553(e) recommending that Defendant’s sentence not exceed one-half of th e appropriately calculated guideline range. See R., Vol. I, Doc. 459. The Presentence Report (PSR) noted the government’s recommendations,

see R., Vol. IV at 7-8, but rejected the government’s position on the firearm3

enhancement and the minor-role reduction. See id. at 15-16. The PSR arrived at a total offense level of 40, which included an enha ncement for being a manager or supervisor of an illegal enterprise. See id. at 16. The PSR did, however, favorably incorporate the government’s recommendati ons on the acceptance of responsibility and obstruction of justice adjustments. See id. The guideline sentencing range for the recommended offense level of 40 and criminal history category of IV is 360 months to life. See U.S. Sentencing Guidelines Manual (Table). After the PSR was completed, the governme nt filed a motion pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) recommendi ng that the Defendant be sentenced to a term of imprisonment of 180 months. See Supplemental R., Vol. I, Doc. 508. At the sentencing hearing, the court not ed the statements in the PSR concerning the government’s recommendations. See R., Vol. II at 3, 16. The court stated that it would not impose the Probation Office’s proposed three-level enhancement for an aggravated role in the offense. See id. at 3-4. The sentencing court therefore calculated Defendant’s o ffense level as 37 and sentenced the Defendant to 146 months of imprisonme nt, one-half of the lowest sentence in the guideline range for that offense le vel. See id. at 17-18. On appeal, Defendant contends that the government b reached the plea agreement by not arguing for the sentence adjustmen ts it agreed to “recommend” at the sentencing hearing. Defendant maintains that to fulfill the terms of the plea4

agreement, the government must do more than simply have the terms of the plea agreement included in the PSR. See Appellant’s Br. at 7. We review the issue of whether a plea agreement is violated de novo . See United States v. Hawley , 93 F.3d 682, 690 (10th Cir. 1996). The core issue in this case is: Does the governmen t breach a plea agreement if it does not engage in persuasion at th e sentencing hearing even though the court is made aware of the government’s position by virtue of its inclusion in the Presentence Report? We hold that the government did not breach this plea agreement because the agreement did not e xpressly require government allocution in favor of its recommendations. The prosecutor agreed to perform five specific acts , i.e., to: (1) recommend that Defendant receive a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1; (2) recommend that De fendant receive a two-level reduction for his minor role in the offense pursuant to U.S.S.G. § 3B1.2; (3) recommend that Defendant not receive a two-level en hancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) r ecommend that Defendant not receive a two-level sentence enhancement for obstru ction of justice pursuant to U.S.S.G. § 3C1.1; and (5) file a motion for a subst antial assistance departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e ). All of the agreed-upon recommendations were reported in the PSR. See R., Vol. IV at 7-8. The5

government’s recommendations, contained within the Presentence Report, were noted by the judge at the sentencing hearing. See R., Vol. II at 3, 16. We note that the trial court did grant the government’s U.S .S.G. § 5K1.1 motion, while rejecting the government’s other sentence adjustment recommendations. The government fulfilled its obligation to recommen d the sentencing adjustments when those recommendations were conside red, although rejected, in the Presentence Report. The sentencing judge may e xercise his discretion at sentencing without transforming the prosecutor’s si lence into a breach of the agreement. Defendants should be advised that when there is no specific statement in a plea agreement that the government must allocu te in favor of its recommendation(s) at a sentencing hearing, the gove rnment can satisfy the term “recommendation” by having its recommendations incl uded in the PSR, which is then called to the attention of the sentencing court. We hold that the term “recommendation” in a plea ag reement does not require the prosecutor to allocute in favor of spec ific adjustments in the defendant’s sentence if the recommendations are con tained in the PSR and the prosecutor does not allocute against an agreed-uponadjustment. AccordUnited States v. Maling , 942 F.2d 808, 810-11 (1st Cir. 1991); butsee United States v. Myers , 32 F.3d 411, 413 (9th Cir. 1994) (“The bargain th at the defendant agreed to was not a promise by the government to recommend , but the actual fact of6

recommendation. . . . It [is] insufficient that th e court, by reading the presentence report and the plea agreement, was aware [of the go vernment’s recommendation.]”). Courts routinely hold that pro secutors breach plea agreements when they engage in condemnatory speech or contradictory acts at sentencing. See , e.g. , United States v. Peglera , 33 F.3d 412, 414 (4th Cir. 1994); Brunelle v. United States , 864 F.2d 64, 65 (8th Cir. 1988); United States v. Tobon-Hernandez , 845 F.2d 277, 279-80 (11th Cir. 1988). However, in the case before us the only advocacy the prosecution underto ok was to the benefit of Defendant. No act of the government before or at s entencing could be read as contrary to the position they agreed to support. We hold that this plea agreement was not breached, and AFFIRM the decision of the district court.