[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14020

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

VOLTAIRE PETER PIERRE, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:19-cr-00052-SDG-1

____________________

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2 Opinion of the Court 22-14020

Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

Voltaire Pierre appeals his convictions and 97-month total 

sentence, stemming from a plea agreement he entered into with 

the government. He argues for the first time on appeal that the 

government breached the plea agreement by requesting or endorsing an upward adjustment for abuse of a position of trust, see 

U.S.S.G. § 3B1.3, which was not among the agreed-upon provisions 

in the plea agreement. After careful review, we conclude that 

Pierre has not met his burden of showing that any breach was sufficiently clear or obvious to warrant relief on plain error review, so 

we affirm his convictions and sentence. We vacate and remand for 

the limited purpose of correcting a clerical error in the judgment. 

I.

From June 2018 to October 2018, while working as a correctional officer at Hays State Prison, Pierre smuggled drugs and contraband into the prison and distributed these things to inmates in 

exchange for cash. After his arrest, he was charged in a two-count 

information with conspiring to possess with intent to distribute 

methamphetamine and cocaine, see 21 U.S.C. § 846, and possessing 

with intent to distribute methamphetamine on premises where 

children are present or reside, see 21 U.S.C. §§ 841(a)(1), 860a.1

1 Packages containing drugs, including cocaine base and methamphetamine,

were delivered to and kept at Pierre’s residence, where a minor child resided.

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Pierre pled guilty to both counts under a negotiated plea 

agreement with the government. In the agreement, the parties 

agreed to certain guideline and sentencing issues, including that the 

applicable offense guidelines were U.S.S.G. § 2D1.1(a)(5) and (c), 

and that Pierre should receive upward adjustments under § 

2D1.1(b)(4) and (14)(B). The government also agreed to recommend offense level reductions for acceptance of responsibility, § 

3E1.1, and the safety valve, § 2D1.1(b)(18), and to “recommend 

that [Pierre] be sentenced at the low end of the adjusted guideline 

range.” No specific offense levels or guideline ranges were set forth 

in the agreement. 

The parties also agreed “not to request any sentence outside 

of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement,” and that the “recommended sentence set forth in this Plea Agreement is reasonable 

under the factors set forth in 18 U.S.C. § 3553(a).” Nonetheless, 

they acknowledged that the recommendations and guideline calculations in the plea agreement were “not binding on the Court,” 

and that the court’s decision not to follow the agreement “will not 

constitute grounds to withdraw [the] guilty plea or to claim a 

breach of [the] Plea Agreement.” Finally, the agreement contained 

a waiver of Pierre’s appellate rights in most circumstances.

The district court accepted Pierre’s guilty plea at a hearing 

in October 2019. During the plea colloquy, Pierre confirmed his 

understanding that the district court was not bound by the plea 

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agreement with regard to the calculation of the guideline range or 

the choice of sentence.

A probation officer prepared a presentence investigation report (“PSR”) to aid the district court at sentencing. Notably, the 

PSR’s guideline calculations included a two-level upward adjustment for abusing a position of trust under § 3B1.3. That recommended enhancement was absent from the plea agreements. According to the PSR, Pierre abused a position of trust as a correctional officer “by smuggling drugs into the prison where he was 

entrusted with the care and security of the inmates housed 

therein.” Based in part on that adjustment, the PSR calculated a 

total offense level of 33. Pierre had no criminal history, so the recommended guideline range was 135 to 168 months of imprisonment.

Neither party objected to the PSR. In accordance with the 

plea agreement, the government sought a reduction of five levels 

from the total offense level calculated in the PSR—that is, from 

level 33 to level 28. In an accompanying sentencing memorandum, 

the government summarized the PSR’s guideline calculations, including the § 3B1.3 abuse-of-trust adjustment, and it requested a 

sentence at the low end of the modified guideline range of 78 to 97 

months. 

At sentencing, the district court adopted the government’s 

five-level-reduction recommendation. It also adopted the PSR’s 

factual statements and guideline calculations without objection. 

Thus, the court adopted the PSR’s application of a two-level 

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increase for abuse of a position of public trust, ultimately arriving 

at a guideline range of 78 to 97 months. 

The district court then invited argument on recommendations for a reasonable sentence. The government argued for a lowend 78-month sentence, asserting that the “state trusted Mr. Pierre 

to do the right thing and maintain security,” but he instead “chose 

to smuggle drugs” to incarcerated gang members because he was 

“greedy,” conduct which merited “serious punishment.” Defense 

counsel spoke at length about mitigating factors, including Pierre’s 

background and family and the financial stressors he faced in 

providing for three young children. Pierre allocuted, and the court 

heard testimony from Pierre’s pastor.

The district court sentenced Pierre to a total of 97 months in 

prison, at the high end of the guideline range. The court discussed 

its consideration of the 18 U.S.C. § 3553(a) factors, including the 

seriousness of the offense conduct, the need for general deterrence, 

which it emphasized, and Pierre’s personal history. 

Pierre appeals, arguing for the first time that the government breached the plea agreement by endorsing the two-level 

abuse-of-trust enhancement, U.S.S.G. § 3B1.3, which was not listed 

in the plea agreement. Despite the appeal waiver in Pierre’s plea 

agreement, “an appeal waiver does not bar a defendant’s claim that 

the government breached the plea agreement.” United States v. 

Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016).

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II.

Ordinarily, we review de novo the question whether the government has breached a plea agreement. United States v. Malone, 51 

F.4th 1311, 1318 (11th Cir. 2022). But where “as here, the defendant did not object before the district court that the government 

breached a plea agreement, we review on direct appeal for plain 

error.” Id. Under plain-error review, we may correct a plain error 

that affected the defendant’s substantial rights and the fairness or 

integrity of the judicial proceedings. Id. at 1319. 

“For an error to be considered plain, the error must be clear 

or obvious, rather than subject to reasonable dispute.” United 

States v. Sosa, 782 F.3d 630, 637 (11th Cir. 2015) (quotation marks 

omitted). It follows that not all breaches of a plea agreement “will 

be clear or obvious, such as when the drafting of an agreement 

leaves the scope of the government’s commitments open to 

doubt.” Id. (quotation marks omitted). 

III.

The government “breaches a plea agreement when it fails to 

perform the promises on which the plea was based.” United States 

v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). We judge the government’s actions “according to the defendant’s reasonable understanding at the time he entered his plea.” Id. (quotation marks 

omitted). “We apply an objective standard to decide whether the 

government’s actions are inconsistent with the defendant’s understanding of the plea agreement, rather than reading the agreement 

in a hyper-technical or rigidly literal manner. Id. (cleaned up). 

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In exchange for Pierre’s promise to plead guilty to both 

charges in his indictment, the government agreed to certain guideline application decisions and promised “not to request any sentence outside of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement.”

This language, in Pierre’s view, “amounted to a promise that the 

government would not seek, endorse, or argue for Guideline adjustments other than those specifically listed in the plea agreement.” Pierre claims that the government violated this agreement 

by “endors[ing],” “recommend[ing,]” or “advocat[ing] for an upward adjustment (under § 3B1.3) that was not in the plea agreement.” 

We disagree. The government’s actions were not plainly inconsistent with its promises in the plea agreement, such that we 

can grant relief under plain-error review. See Sosa, 782 F.3d at 638 

(“[I]t was not ‘clear under current law’ that the government patently breached the plea agreements . . . or that any such breach 

should have been ‘obvious’ to the district court.”). The PSR included the § 3B1.3 abuse-of-trust adjustment without any request 

or advocacy from the government. That adjustment was based on 

facts to which Pierre admitted in pleading guilty—that is, that he 

used his position as a correctional officer to smuggle drugs into the 

prison.2 And it was applied by the district court, who was not 

2 The PSR offers no reason to believe that the adjustment was based on other, 

allegedly objectionable facts that the government supplied to the probation 

office, as Pierre contends.

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bound by the plea agreement, without any objection or argument 

from the parties. 

The record does not support Pierre’s contention that the 

government requested, sought, endorsed, or argued for the § 3B1.3 

adjustment in its sentencing memorandum or at sentencing. True, 

the government noted the PSR’s guideline calculations in its memorandum, which it described as “applicable to” Pierre, and it failed 

to object or point out, either in the memorandum or at sentencing, 

that the § 3B1.3 adjustment was inconsistent with the plea agreement. But Pierre does not assert that the plea agreement obligated 

the government to object to a new adjustment. Nor does he claim 

that the government breached the agreement by merely “remaining passive” or failing to object. So these instances of the government’s having “remain[ed] passive” orit failure to object to the PSR 

are not sufficient, without more, to establish a clear breach of the 

plea agreement. 

Pierre also highlights the government’s argument for a sentence at the low end of the guideline range that the PSR recommended and the district court adopted at sentencing—that is, the 

range that included the § 3B1.3 adjustment. He casts the government’s argument under the § 3553(a) factors as an adoption or endorsement of the § 3B1.3 adjustment, actions inconsistent with its 

promise not to request any guideline adjustment not in the plea 

agreement.

But the government, in its arguments for a reasonable sentence, did not advocate a position that would have had any effect 

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on Pierre’s guideline range or that would have “requir[ed] a longer 

sentence than it had agreed to recommend.” United States v. Taylor, 

77 F.3d 368, 371 (11th Cir. 1996). Rather, the government cited 

Pierre’s abuse of trust as a reason for imposing a sentence at the 

low end of the adjusted guideline range, consistent with its “Specific Sentence Recommendation” promise in the plea agreement to 

“recommend that [Pierre] be sentenced at the low end of the adjusted guideline range.” 

While Pierre believes that the government “should have recommended 63 months, the low end of the Guideline range without 

the § 3B1.3 adjustment,” he fails to explain why the plain terms of the 

plea agreement demanded that recommendation. Pierre does not 

contend that he reasonably understood the Recommendation 

promise as requiring a recommendation for a sentence at the low 

end of the guideline range contemplated by the plea agreement, as 

opposed to the range calculated by the district court at sentencing. 

Instead, his argument is that the government violated an unambiguous requirement “to recommend no other Guideline adjustments 

other than those listed in the agreement.” For the reasons already 

explained, though, it is not clear or obvious that the government 

acted inconsistently with that promise. 

None of the cases on which Pierre relies establishes plain error in this case. In Boatner, Taylor, and Malone, we held that a 

breach occurred where the government took a position, in response to a defendant’s PSR objection, that was directly at odds 

with a promise in the plea agreement. In United States v. Boatner, 

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the government stipulated that the defendant was responsible for 

a certain drug quantity, but it then “attempted to bolster” the PSR’s 

higher drug quantity by declaring that its later investigations supported the PSR. 966 F.2d 1575, 1579 (11th Cir. 1992). Likewise, in 

Taylor, the government promised to recommend a sentence of ten 

years but then supported the PSR’s position on relevant conduct, 

which required a sentence of at least 151 months under the thenmandatory guidelines. 77 F.3d at 370–71. And in Malone, the government promised to recommend a reduction for acceptance of responsibility but then took the opposite position at sentencing. 51 

F.4th at 1317, 1320–21. 

Here, in contrast, Pierre did not object to the PSR, and so 

the government was not asked to provide, nor did it offer, any argument or evidence about the application of the § 3B1.3 adjustment. Had Pierre’s counsel objected to the PSR, this would, in several respects, be a different case. But on the current record, we 

cannot say that any breach of the plea agreement by the government was “clear or obvious, rather than subject to reasonable dispute.” Sosa, 782 F.3d at 637. 

For these reasons, we conclude that Pierre has not shown 

that any error was sufficiently “plain” to warrant relief on plainerror review. Accordingly, we do not consider his remaining arguments relating to whether the error affected his substantial rights 

or the fairness and integrity of the proceedings.3 

3 As part of his argument on these points, Pierre contendsthat the district court 

made several other sentencing errors, including focusing on general 

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Finally, although we affirm Pierre’s convictions, we vacate 

and remand for the limited purpose of allowing the district court 

to correct a clerical error in the judgment. See United States v. Massey, 443 F.3d 814, 822 (11th Cir. 2006) (“We may sua sponte raise the 

issue of clerical errors in the judgment and remand with instructions that the district court correct the errors.”). The judgment lists 

the nature of the offense under 21 U.S.C. § 860a as “DISTRIBUTE 

IN OR NEAR SCHOOLS/CONTROLLED SUBSTANCE,” but 

that description pertains to 21 U.S.C. § 860(a), rather than § 860a, 

the statute of conviction. Accordingly, we remand with instructions to correct the judgment’s erroneous description of the nature 

of the offense. 

AFFIRMED in part; VACATED and REMANDED in part. 

deterrence to the exclusion of other pertinent § 3553(a) factors. Perhaps due 

to the appeal waiver in his plea agreement, though, Pierre does not raise these 

arguments as independent grounds for vacating the sentence, so we do not 

address them as such.

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