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 Defendant-Appellant.

Jackie N. Williams, United States Attorney, and Gregory G. Hough, Assistant

United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.

___________________________

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

___________________________

McKAY, Circuit Judge.

___________________________
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After examining the briefs and the appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the briefs

without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument.

Pursuant to a plea agreement, Defendant, Mr. Lester Ervin Smith, pled

guilty to one count of conspiracy to possess with intent to distribute 50 grams or

more of cocaine base, in violation of 21 U.S.C. § 846. The plea agreement

stipulated that the government would: (1) recommend that Defendant receive a

three-level reduction for acceptance of responsibility pursuant to U.S. Sentencing

Guideline (U.S.S.G.) § 3E1.1; (2) recommend that Defendant 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 enhancement for possession of

a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) recommend that Defendant not

receive a two-level sentence enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1; and (5) if appropriate, file a motion 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 the 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 firearm
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enhancement and the minor-role reduction. See id. at 15-16. The PSR arrived at

a total offense level of 40, which included an enhancement for being a manager or

supervisor of an illegal enterprise. See id. at 16. The PSR did, however,

favorably incorporate the government’s recommendations 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 government filed a motion pursuant to

U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) recommending 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 noted 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 offense level as 37 and

sentenced the Defendant to 146 months of imprisonment, one-half of the lowest

sentence in the guideline range for that offense level. See id. at 17-18.

On appeal, Defendant contends that the government breached the plea

agreement by not arguing for the sentence adjustments it agreed to “recommend”

at the sentencing hearing. Defendant maintains that to fulfill the terms of the plea
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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 government breach a plea

agreement if it does not engage in persuasion at the 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 expressly 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 Defendant 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 enhancement for possession of

a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) recommend that Defendant not

receive a two-level sentence enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1; and (5) file a motion for a substantial 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. The
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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 recommend the sentencing

adjustments when those recommendations were considered, although rejected, in

the Presentence Report. The sentencing judge may exercise his discretion at

sentencing without transforming the prosecutor’s silence 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 allocute in favor of its

recommendation(s) at a sentencing hearing, the government can satisfy the term

“recommendation” by having its recommendations included in the PSR, which is

then called to the attention of the sentencing court.

We hold that the term “recommendation” in a plea agreement does not

require the prosecutor to allocute in favor of specific adjustments in the

defendant’s sentence if the recommendations are contained in the PSR and the

prosecutor does not allocute against an agreed-upon adjustment. Accord United

States v. Maling, 942 F.2d 808, 810-11 (1st Cir. 1991); but see United States v.

Myers, 32 F.3d 411, 413 (9th Cir. 1994) (“The bargain that the defendant agreed

to was not a promise by the government to recommend, but the actual fact of
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recommendation. . . . It [is] insufficient that the court, by reading the presentence

report and the plea agreement, was aware [of the government’s

recommendation.]”). Courts routinely hold that prosecutors 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 undertook was to the benefit of

Defendant. No act of the government before or at sentencing 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.