[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-13381

Non-Argument Calendar

________________________

D.C. Docket No. 3:11-cr-00281-RBD-JBT-1

UNITED STATES OF AMERICA, 

 

 Plaintiff-Appellee,

 versus

BRYAN ADRAIN COPELAND, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(May 29, 2013)

Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM: 

Case: 12-13381 Date Filed: 05/29/2013 Page: 1 of 12 
2

After a guilty plea, Bryan Copeland appeals his total 264-month sentence for

wire fraud, aggravated identity theft, and making false claims against the United 

States. Copeland argues, inter alia, that the government breached the plea 

agreement by failing to recommend a three-level guideline reduction under 

U.S.S.G. § 3E1.1 for acceptance of responsibility. After review, we vacate the 

district court’s judgment and remand for resentencing.

I. BACKGROUND

A. The Indictment

In 2011, a federal grand jury issued a 38-count indictment against Copeland, 

charging him with 11 counts of mail fraud, in violation of 18 U.S.C. § 1341; 16 

counts of wire fraud, in violation of 18 U.S.C. § 1343; 9 counts of aggravated 

identity theft, in violation of 18 U.S.C. § 1028A; and 2 counts of making false 

claims against the United States, in violation of 18 U.S.C. § 287. The indictment 

alleged that Copeland, with the help of other co-conspirators, engaged in a 

prolonged tax fraud scheme by using stolen identities to file fraudulent tax returns 

and obtain refunds.

B. The Plea Agreement

In 2012, Copeland entered into a written plea agreement with the 

government, in which he agreed to plead guilty to one count of wire fraud (Count 

27), one count of aggravated identity theft (Count 36), and one count of making a 

Case: 12-13381 Date Filed: 05/29/2013 Page: 2 of 12 
3

false claim against the United States (Count 37). In exchange, the government 

agreed to dismiss the remaining counts of the indictment. 

It is undisputed that, before entering the plea agreement, the government was 

aware of two pre-indictment incidents that were later used to enhance Copeland’s 

sentence for obstruction of justice. Specifically, (1) in February 2010, after the 

investigation into Copeland’s criminal activities commenced, Copeland attempted 

to destroy evidence while fleeing from law enforcement officers, and, (2) in 

September 2011, Copeland intimidated a potential witness by striking the witness 

with his car. 

Despite knowing of these incidents, the government agreed to recommend a 

two- or three-level reduction for acceptance of responsibility, pursuant to U.S.S.G. 

§ 3E1.1. Specifically, the plea agreement provided:

Acceptance of Responsibility – Three Levels

At the time of sentencing, and in the event that no adverse 

information is received suggesting such a recommendation to be 

unwarranted, the United States will recommend to the Court that the 

defendant receive a two-level downward adjustment for acceptance of 

responsibility, pursuant to USSG § 3E1.1(a). The defendant 

understands that this recommendation or request is not binding on the 

Court, and if not accepted by the Court, the defendant will not be 

allowed to withdraw from the plea.

Further, at the time of sentencing . . . the United States agrees to 

file a motion pursuant to USSG § 3E1.1(b) for a downward 

adjustment of one additional level. The defendant understands that 

the determination as to whether the defendant has qualified for a 

downward adjustment of a third level for acceptance of responsibility 

Case: 12-13381 Date Filed: 05/29/2013 Page: 3 of 12 
4

rests solely with the [government], and the defendant agrees that the 

defendant cannot and will not challenge that determination, whether 

by appeal, collateral attack, or otherwise.

(Emphasis added). 

The plea agreement also contained a separate “Substantial Assistance” 

provision, pursuant to which Copeland agreed to “cooperate fully” with the 

government’s investigation, and, in return, the government would “consider” filing 

a motion for, inter alia, a downward departure under U.S.S.G. § 5K1.1.

In a paragraph entitled “Sentencing Information,” the government reserved

its right (1) to provide all relevant sentencing information to the district court and 

the U.S. Probation Office, and (2) “to make any recommendations it deems 

appropriate regarding the disposition of this case, subject to any limitations set 

forth herein.” 

C. Presentence Investigation Report

After the district court accepted Copeland’s guilty plea, a probation officer 

compiled the Presentence Investigation Report (“PSI”), calculating Copeland’s 

guideline range. The PSI calculated a total offense level of 42, which included, 

inter alia, a 2-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

The PSI applied this enhancement because of the two above incidents that occurred

before Copeland was indicted. 

Case: 12-13381 Date Filed: 05/29/2013 Page: 4 of 12 
5

The PSI did not apply a § 3E1.1 reduction for acceptance of responsibility, 

given the above two incidents and because Copeland “did not truthfully admit all 

of his conduct and relevant conduct” and did not “voluntarily assist authorities 

with the recovery of the fruits of the offense.” 

Copeland’s total offense level of 42 and his criminal history category of I

yielded an initial guideline range of 360 months to life imprisonment. Because the

combined statutory maximum sentences for wire fraud (Count 27) and making 

false claims (Count 37) totaled 25 years (300 months), the guideline range for 

those offenses became 300 months, pursuant to U.S.S.G. § 5G1.2(b). See 18 

U.S.C. §§ 287, 1343.

1

D. Objections to the PSI

Copeland objected to the PSI’s failure to recommend a reduction for 

acceptance of responsibility under § 3E1.1, noting that the government had agreed 

to recommend a two-level reduction in the plea agreement. Copeland also 

objected, among other things, to the two-level enhancement for obstruction of 

justice. 

 

1

In calculating Copeland’s guideline range, the PSI grouped together Count 27 (wirefraud) and Count 37 (making false claims), pursuant to U.S.S.G. § 3D1.2(d). Copeland’s 

conviction on Count 36 (aggravated identity theft) mandated a consecutive minimum sentence of 

two years, or 24 months. See 18 U.S.C. § 1028A(a)(1). The guideline sentence for that offense 

was 24 months, pursuant to U.S.S.G. § 2B1.6, and was calculated separately. 

Case: 12-13381 Date Filed: 05/29/2013 Page: 5 of 12 
6

The government did not object to the PSI or its failure to include the 

acceptance-of-responsibility reduction. On the contrary, the government filed a 

sentencing memorandum affirmatively arguing that (1) the obstruction-of-justice 

enhancement should apply, given Copeland’s two pre-indictment incidents 

mentioned in the PSI, and (2) the acceptance-of-responsibility reduction should not 

apply.

The government acknowledged that, in the plea agreement, it had agreed to

recommend a § 3E1.1 reduction for acceptance of responsibility. It argued, 

however, that this “recommendation was included in light of the fact that the plea 

agreement also contain[ed] provisions which would provide for a downward 

departure motion pursuant to Section 5K1.1 of the Sentencing Guidelines, should

the defendant provide substantial assistance.” In other words, the government

appeared to argue that its agreement to recommend an acceptance-of-responsibility 

reduction was tied to whether it also filed a § 5K1.1 substantial-assistance motion. 

The government further explained that, although an obstruction-of-justice 

enhancement usually precludes an acceptance-of-responsibility reduction, both the 

enhancement and the reduction may apply in “extraordinary cases.” Thus, 

Copeland could have qualified for the § 3E1.1 reduction if he “provided full, 

complete, and total cooperation which supported a Section 5K1.1 motion.” 

According to the government, because no § 5K1.1 motion was forthcoming in this 

Case: 12-13381 Date Filed: 05/29/2013 Page: 6 of 12 
7

case, there were no extraordinary circumstances justifying a reduction for 

acceptance of responsibility.

E. Sentencing Hearing

At the sentencing hearing, the government essentially reiterated the above 

argument from its sentencing memorandum, stating that Copeland could have 

qualified for an acceptance-of-responsibility reduction under § 3E1.1, even with 

the enhancement for obstruction of justice, but, given Copeland’s lack of 

cooperation with the government, the reduction was not warranted. 

The district court overruled Copeland’s objection to the obstruction-ofjustice enhancement, finding that the government established obstruction by a 

preponderance of the evidence. The district court then upheld the PSI’s denial of 

the reduction for acceptance of responsibility. While noting that Copeland 

expressed remorse for his crimes, the district court stated:

I don’t find a lot of acknowledgment of the scope of the fraud, the 

complications of the fraud to the extent that other people were 

involved in the criminal enterprise. 

I don’t find any discussion about the disposition of the proceeds 

of the fraud, which is particularly troublesome to the Court, and is 

oftentimes I think a very good barometer of the acceptance of 

responsibility; and I find all those things to be absent here.

The district court then adopted the PSI’s guideline calculations. 

In sentencing Copeland, the district court varied downward from the 

applicable guideline range of 300 months and imposed a total sentence of 240 

Case: 12-13381 Date Filed: 05/29/2013 Page: 7 of 12 
8

months’ imprisonment on Counts 27 and 37 (wire fraud and making false claims). 

The district court explained that the downward variance was justified in light of the 

potential sentencing disparities between Copeland and other defendants involved in 

Copeland’s tax fraud scheme. The district court also imposed a statutorily 

mandated 24-month consecutive sentence as to Count 36, for a total sentence of 

264 months in prison and 3 years of supervised release. 

II. DISCUSSION

A. Plea Agreements

“The government is bound by any material promises it makes to a defendant 

as part of a plea agreement that induces the defendant to plead guilty.” United 

States v. Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008) (internal quotation marks 

omitted).

2

 We analyze the plea agreement according to the defendant’s reasonable 

understanding on entering the plea. United States v. Rewis, 969 F.2d 985, 988 

(11th Cir. 1992). If the government disputes the defendant’s understanding, we

use “objective standards” to determine the terms of the plea agreement. Id. An 

ambiguous agreement “must be read against the government.” United States v. 

Copeland, 381 F.3d 1101, 1105-06 (11th Cir. 2004) (internal quotation marks

omitted).

B. Copeland’s Plea Agreement about Acceptance of Responsibility

 

2

We review de novo whether the government has breached a plea agreement. United 

States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). 

Case: 12-13381 Date Filed: 05/29/2013 Page: 8 of 12 
9

In this case, the plea agreement stated that the government would

recommend a two-level reduction for acceptance of responsibility under § 3E1.1(a) 

unless “adverse information is received suggesting such a recommendation to be 

unwarranted.” At sentencing, the government presented no evidence of “adverse 

information” received after the plea agreement was entered. 

Rather, the government argued, essentially, that Copeland was not eligible 

for a § 3E1.1 reduction because he failed to provide substantial assistance to the 

government such as to qualify for a downward departure motion under U.S.S.G. 

§ 5K1.1. Yet nothing in the plea agreement conditioned the recommendation for a

§ 3E1.1 reduction on Copeland’s substantial assistance to the government (as 

defined in § 5K1.1), and nothing in § 3E1.1 itself requires a defendant to provide 

substantial assistance to be eligible for a reduction. See U.S.S.G. § 3E1.1.

3

Accordingly, the government breached the plea agreement when it failed to 

recommend a two-level reduction under § 3E1.1(a) and affirmatively 

recommended denying such a reduction. 

The government, however, did not breach the plea agreement by failing to 

file a motion for an extra one-level reduction under § 3E1.1(b). The plea 

 

3

On appeal, the government argues that Copeland’s lack of cooperation constituted the 

“adverse information” that prevented him from qualifying for the acceptance-of-responsibility 

reduction. We reject this argument. The plea agreement dealt with cooperation in separate 

provisions, and nothing in the agreement conditioned the acceptance-of-responsibility 

recommendation on such cooperation. 

Case: 12-13381 Date Filed: 05/29/2013 Page: 9 of 12 
10

agreement expressly stated that the determination as to whether Copeland qualified 

for this additional one-level reduction “rests solely with the [government], and the 

defendant agrees that the defendant cannot and will not challenge that 

determination, whether by appeal, collateral attack, or otherwise.” Thus, Copeland 

cannot now challenge the government’s discretionary determination about this

extra one-level § 3E1.1(b) reduction.

In addition, it does not matter to the breach analysis whether the district 

court would have actually followed the government’s recommendation and granted 

a reduction for acceptance of responsibility. See Santobello v. New York, 404 

U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971) (remanding the case due to the 

prosecution’s breach of a plea agreement, even though the sentencing judge stated 

that the breach did not influence the sentence and there was no reason to doubt the 

judge’s statement); Johnson, 132 F.3d at 630 (stating that “the sentencing judge’s 

acts are not important” to the issue of breach because the government, “not the 

court,” violated the plea agreement).4 

 4

The government argues that any breach of the plea agreement was harmless error 

because, even with the two-level reduction for acceptance of responsibility, Copeland’s guideline 

range would have been 292 to 300 months, only 8 months less than the original 300-month range 

for Counts 27 and 37. This argument fails. Assuming, without deciding, that a breach of the 

plea agreement is subject to such harmless error analysis, the error here was not harmless. As 

the government acknowledges, the two-level reduction under § 3E1.1(a) would have reduced 

Copeland’s guideline range, albeit by a relatively small amount, and the district court did not say 

that it would have imposed the same sentence with or without the reduction. See United States 

v. Williams, 627 F.3d 839, 845 (11th Cir. 2010) (holding that a sentencing error was not 

Case: 12-13381 Date Filed: 05/29/2013 Page: 10 of 12 
11

C. Obstruction of Justice Enhancement

Copeland contends that the government also breached the plea agreement by 

advocating for an obstruction-of-justice enhancement under § 3C1.1. We disagree. 

The plea agreement contained no provision prohibiting the government from 

recommending an enhancement for obstruction of justice. Indeed, the agreement 

expressly reserved the government’s right “to make any recommendations it deems 

appropriate regarding the disposition of this case, subject to any limitations set 

forth herein.” 

We recognize that, according to the § 3E1.1 commentary, an obstruction-ofjustice enhancement “ordinarily indicates that the defendant has not accepted 

responsibility for his criminal conduct.” U.S.S.G. § 3E1.1, comment. (n.4). The 

same commentary also provides, however, that there may be “extraordinary cases 

in which adjustments under both §§ 3C1.1 [obstruction enhancement] and 3E1.1 

[acceptance reduction] may apply.” Id. Therefore, the fact that Copeland received 

an obstruction-of-justice enhancement does not automatically or necessarily 

prohibit him from receiving an acceptance-of-responsibility reduction. 

Moreover, the government entered the plea agreement with full knowledge 

of Copeland’s pre-indictment conduct that was later used for the obstruction-of-

 

harmless because the district court “did not state that it would impose the same sentence even if 

it erred in calculating the applicable advisory guideline range”). 

Case: 12-13381 Date Filed: 05/29/2013 Page: 11 of 12 
12

justice enhancement, and cannot now be excused from fully performing its 

promises as to acceptance of responsibility. See United States v. Johnson, 132 

F.3d 628, 630 (11th Cir. 1998) (“It is not the court’s role to determine if the 

government made a wise choice in entering into the plea agreement. Instead, the 

court is only responsible for ensuring the terms of a plea agreement are followed.” 

(citation omitted)).

D. Remedy

Given the government’s breach of the plea agreement in failing to 

recommend a two-level reduction under § 3E1.1(a), two remedies are available for 

Copeland: (1) “specific performance” of the agreement before a different 

sentencing judge, or (2) withdrawal of the guilty plea. Johnson, 132 F.3d at 631;

United States v. Foster, 889 F.2d 1049, 1056 (11th Cir. 1989) (“[W]hen the 

government breaches an agreement, the defendant must either be resentenced by a 

new judge or allowed to withdraw his plea, regardless of whether the judge was 

influenced [by the government’s breach].”). Specific performance is appropriate 

here because “no question exists that the plea was knowingly and voluntarily 

entered,” and Copeland does not seek to withdraw his plea. See id.

Accordingly, we vacate Copeland’s sentence and remand for resentencing 

before a different judge, consistent with this opinion.

VACATED AND REMANDED.

Case: 12-13381 Date Filed: 05/29/2013 Page: 12 of 12