FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11411

Non-Argument Calendar

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D. C. Docket No. 07-00107-CR-ORL-28-UAM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO ENRIQUE PERLAZA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(December 15, 2008)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Ricardo Enrique Perlaza appeals his 37-month sentence, imposed following
his conviction on 1 count of possession with intent to distribute 500 grams or more

of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). On appeal, Perlaza

argues that the government breached his plea agreement by introducing post-arrest,

incriminating statements he made in a proffer, which his plea agreement barred the

government from introducing. He also argues that the district court erred in

determining the amount of drugs for which he was responsible because it based the

calculation on the post-arrest statements, which his plea agreement forbade the

court from considering, and because the court made no finding that his actions

were part of the same course of conduct or common scheme or plan as his offense

of conviction. Based on our review of the record and the parties’ briefs, we discern

no reversible error.

I. Breach of Plea Agreement

We review whether the government beached a plea agreement de novo, but

we review the district court’s factual findings as to the scope of a plea agreement

for clear error. United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir.), cert.

denied, (U.S. Oct. 6, 2008) (No. 08-137).

“A material promise by the government, which induces a defendant to plead

guilty, binds the government to that promise. Whether the government violated the

agreement is judged according to the defendant’s reasonable understanding of the

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agreement when he entered the plea.” United States v. Thomas, 487 F.3d 1358,

1360 (11th Cir. 2007) (citation omitted).

Because the plea agreement does not reflect an agreement that the

government could not use incriminating statements Perlaza had already made to

state officers in calculating his guideline range, the government did not breach the

plea agreement.

II. Drug-Quantity Determination

“We review a district court’s determination of the quantity of drugs properly

attributable to a defendant for clear error.” United States v. Ryan, 289 F.3d 1339,

1347 (11th Cir. 2002). Objections to sentencing issues that are not raised in the

district court are reviewed for plain error and can only be corrected if there is an

error, that is plain, and that affects substantial rights. United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir. 2005). If these criteria are met, a court of appeals

has the discretion to correct the error, but “should” correct the error only if it

“seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 1779,

123 L.Ed.2d 508 (1993) (quotation and alteration omitted). “Where errors could

have cut either way and uncertainty exists, the burden is the decisive factor in the

third prong of the plain error test, and the burden is on the defendant.” Rodriguez,

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398 F.3d at 1300.

To determine a defendant’s offense level, a district court may consider

“quantities of drugs not specified in the count of conviction.” U.S.S.G. § 2D1.1,

comment. (n.12). Under U.S.S.G. § 1B1.3(a)(2), the base offense level is to be

determined based on acts “that were part of the same course of conduct or common

scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also

U.S.S.G. § 1B1.3, comment. (n.3) (providing that “multiple counts of conviction

are not required for subsection (a)(2) to apply”). “For two or more offenses to

constitute part of a common scheme or plan, they must be substantially connected

to each other by at least one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3,

comment. (n.9(A)).

Because Perlaza admitted in his plea agreement that he was involved in four

other cocaine deliveries and because the government presented evidence that each

delivery involved three kilograms of cocaine, the district court did not clearly err in

determining that he was responsible for at least five kilograms of cocaine.

Perlaza’s argument – that the court failed to make a finding that his actions were

part of the same course of conduct or common scheme or plan as his offense of

conviction – fails because the district court implicitly made this finding by

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adopting the probation officer’s drug quantity calculations and because the court

was entitled to make this finding implicitly. Accordingly, we affirm.

AFFIRMED.

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