[DO NOT PUBLISH]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, Defe ndant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (May 29, 2013) Before C A R NES , BARKETT and HULL , Circuit Judges.
PER CURIAM:

Case: 12-13381 Date Filed: 05/29/2013 Page: 1 of 122 After a guilty plea, Bryan Copeland appeals h is total 264

- month sentence for wire fraud, aggravated identity theft, and making false c laims 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 Copelan d, 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 123 false claim against the United States (Count 37). In exchange , the government agreed to dismiss the remain ing counts of the indictment. It is undisputed that, b efore entering the plea agreement, the government was

aware of two pre

- indictment incidents t hat 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 enforce ment officers, and, (2) in September 2011, Copeland intimidated a potential witness by striking the witness with his car. Despite knowing of these incidents , t he government agreed to recommend a
two

- or three

- level reduction for acceptance of responsibility , pursuant to U.S.S .G. § 3E1.1

. Sp ecifically, 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 § 3E 1. 1(a). The defendant understands that this recommendation or request is not binding on the Court, and if not accepted by the Cou r t, 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 do wnward adjustment of one additional level. The defendant unders t ands 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 124 rests solely with the [government], and the d efendant agrees that the defendant cannot and will not challenge that determination, whether by appeal, collateral attack, or otherwise. (E mphasis 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 de parture under U.S.S.G. § 5K1.1

. In a paragrap h 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 acc epted Copeland’s guilty plea, a probation officer compiled t he Presentence Invest igation Report (“PSI”) , calculating Copeland’s guideline range

. T he PSI calculated a total offense level of 4 2, which included , inter alia , a 2

- level enhancement for obstruction of justice under U.S.S.G. § 3C1.1

. The PSI applied th is enhancement because of the two above incidents that occur r ed before Copeland was indicted.

Case: 12-13381 Date Filed: 05/29/2013 Page: 4 of 125 The PSI did not apply a § 3E1.1 reduction f or acceptance of responsibility , given the above two incidents and because Copeland “did not truthfully admit all
of h is 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 a n initial guideline range of 360 mo nths to life imp risonment

. B ecause the combined statutory maximum sentences for wire fraud (Count 27) and making false claims (Count 3 7) totaled 25 years (300 months) , the guideline range for those offense s 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 ( wire

fraud ) 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, pursua nt to U.S.S.G. § 2B1.6, and was calculated separately.

Case: 12-13381 Date Filed: 05/29/2013 Page: 5 of 126 T he government did not object to the PS I or its failure to include the acceptance

- of

- responsibility reduction. On the contrary, the government filed a sentencing memorandum affirmatively a rguing that (1) the obstruction

- of

- justice enhancement should apply , gi ven Copeland’s two pre

- indictment incidents mentioned in the PSI, and (2 ) the acceptance

- of

- responsibi lity reduction should not apply.
T he 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 whi ch would provide for a downward departure motion pursuant to Section 5K1.1 of the Sen tencing 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

- as sistance 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 quali fied for the § 3E1.1 reduction if he “ provided full, complete, and total cooperation which supported a Section 5K1.1 motion. ” According to the government, b ecause no § 5K1.1 motion w as forthcoming in this

Case: 12-13381 Date Filed: 05/29/2013 Page: 6 of 127 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
argum ent 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 overr uled Copeland’s objection to the obstruction

- of

justice enhancement, finding that the government established obstruction by a
p reponderance of the evidence. The district court then upheld the PSI’s denial of the reduction for acceptance of responsibility

. While n ot ing that Copeland expressed remorse f or 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 guide line calculations

. In sentencing Copeland, t he 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 128 months ’ imprisonment on Count s 27 and 37 (wire fraud and making false claims). The district court explained that the downward variance was justifie d in light of the potential sentencing disparities between Copeland and other defendants involved in Copeland’s tax fraud scheme

. The district cour t also imposed a statutorily mandated 24

- month consecutive sentence as to Count 3 6, for a total sentence of 264 months in prison and 3 years of supervised release

. II. DISCUSSION A. Plea Agreement s “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.3 d 1275, 1281 (11th Cir. 2008) (internal quotation marks omitted)

. 2 We ana lyze 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 standard s” to dete rmine 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 a bout Acceptance of Responsibility

2 W e 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 129 In this case, the plea agreement stated that the government would recommend a two

- level reduction for acceptance of responsibility under § 3E 1.1(a) unless “adverse informatio n is received suggesting such a recommendation to be
unwarrant ed .” At sentencing , the governm ent presented no evidence of “adverse information ” received after the plea agreement was entered.
Rather , the go vernment argued , essentially, that Copeland was not eligible for a § 3E1.1 reduction because he failed to provide substantial assis tance 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 substanti al assistance to th e government (as define d in § 5K1.1), and nothing in § 3E1.1 itself requires a defendant to provide subst antial assistance to be eligib le for a reduction. See U.S.S.G. § 3E1.1

. 3 Accordingly, the governmen t breached the plea agreement when it failed to recommend a two

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

recommen ded denying such a reduction.
T he government , however, did not breach the plea agreement by failin g 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 prev ented 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 a greement conditioned the acceptance

- of

- responsib ility recommendation on such cooperation

.

Case: 12-13381 Date Filed: 05/29/2013 Page: 9 of 1210 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 n ot 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, Copel and’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 ana lysis, 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 impo sed 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 1211 C. Obstruction of Justice Enhancement Copeland contends that the government also breached the plea agreem ent by advocating for an obstruction

- of

- justice enhancement under § 3C1.1

. We disagr ee. The plea agreement contained no provision prohibiting the government from recommending an enhancement for ob struction of justice

. Indeed , the agreement

e xpressly 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

- of

justice enhan cement “ ordinarily indicates that the defendant has not accepted responsi bility 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 bot h §§ 3C1.1 [obstruction enhancement ] and 3E1.1 [acceptance reduction ] may apply

. ” Id

. Therefore, the fact that Copeland recei ved an obstruction

- of

- justice enhancement does not automatically or necess arily prohibit him from receiving an acceptance

- of

- responsibility reduction

. Moreover , t he government entered the plea agreem ent with full knowledge of C opeland’s pre

- indictment conduct th at was later used for the obstructi on - 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 1212 justice enhancement , and cannot now be excused from fully performing its promises as to acceptance of respo n sibility

. 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 agree ment. Instead, the court is only r esponsible for ensuring the terms of a plea agreement are followed. ” (citation omitted)).
D . Remedy Given the government’s breach of the plea agreement in failin g 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 n ot 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