[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10933

Non-Argument Calendar

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D.C. Docket No. 9:12-cr-80179-KLR-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ERNESTO CEDILLO, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(September 5, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM: 

Ernesto Cedillo appeals his sentence of 33 months’ imprisonment and 30 

years’ supervised release, imposed after pleading guilty to failure to register under 

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the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 

U.S.C. § 2250(a). For the reasons set forth below, we affirm Cedillo’s sentence. 

I.

Pursuant to a written plea agreement, Cedillo agreed to plead guilty to 

failure to register under SORNA. The plea agreement stated that “[Cedillo] 

understands and acknowledges that the Court may impose a maximum penalty of 

up to 10 years imprisonment. In addition to any term of imprisonment, the Court 

may impose a term of supervised release of up to 3 years.”1

 The plea agreement 

further provided that, “[s]ubject only to the express terms of any agreed-upon 

sentencing recommendations contained in this agreement, [the government] further 

reserves the right to make any recommendation as to the quality and quantity of 

punishment.” 

At Cedillo’s plea hearing, the district court reiterated the penalties set forth 

in Cedillo’s plea agreement, explaining that, if it accepted Cedillo’s plea, it could 

impose a maximum penalty of ten years’ imprisonment and three years’ supervised 

release. Cedillo confirmed that he understood the maximum penalties. Cedillo 

pled guilty, and the court found that his plea was entered knowingly and 

voluntarily. Thus, the court accepted his plea. 

 1

 The plea agreement and the district court at the plea hearing misadvised Cedillo that 

three years was the maximum term of supervised release that could be imposed for a violation of 

§ 2250, which actually has a five-year mandatory minimum term of supervised release and a 

maximum term of life. See 18 U.S.C. § 3583(k).

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At sentencing, the government requested that the court impose a sentence of 

33 months’ imprisonment and 30 years’ supervised release. The government 

asserted that the mandatory minimum term of supervised release was five years 

and the maximum term was life. After considering the statements of all of the 

parties, the presentence investigation report, and the statutory factors, the court 

sentenced Cedillo to 33 months’ imprisonment and 30 years’ supervised release. 

II.

On appeal, Cedillo argues that the government breached his plea agreement 

when it requested that the district court impose a 30-year term of supervised 

release after agreeing that the term of supervised release would be no more than 3 

years. The government, by stating in the plea agreement that three years’ 

supervised release was the maximum term of supervised release that the district 

court could impose, implicitly promised that the government would not seek a term 

of supervised release greater than three years. Cedillo concedes that our review of 

his argument is for plain error, and argues that he can satisfy all four requirements 

necessary to warrant reversal under that standard. Cedillo further asserts that his 

case should be remanded for resentencing and that he is entitled to specific 

performance of his plea agreement.2

 

 2

 Cedillo does not argue on appeal that the district court’s error rendered his plea 

unknowing. Thus, we do not address this issue. 

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We generally review de novo the question of whether the government 

breached a plea agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th 

Cir. 2004). However, where a defendant fails to object to an alleged breach before 

the district court, as is the case here, we review only for plain error. United States 

v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Plain error exists where 

(1) there is an error, (2) that is plain, (3) that affects the defendant’s substantial 

rights, and (4) that seriously affects the fairness, integrity, or public reputation of 

the judicial proceedings. Id. 

The first step in determining whether the government breached a plea 

agreement is to “determine the scope of the government’s promises.” Copeland, 

381 F.3d at 1105. In interpreting a plea agreement, a court should not engage in a 

“hyper-technical reading of the written agreement” or “a rigidly literal approach in 

the construction of the language.” Id. (quotations omitted). A plea agreement that 

is ambiguous “must be read against the government.” Id. at 1105-06 (quotation 

omitted). We apply an objective standard to determine “whether the government’s 

actions [were] inconsistent with what the defendant reasonably understood” when 

he pleaded guilty. Id. at 1105 (quotation omitted). The government breaches a 

plea agreement where it promises to make a particular sentencing recommendation 

and then advocates a position incompatible with the fulfillment of that promise. 

United States v. Taylor, 77 F.3d 368, 370-71 (11th Cir. 1996). 

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Here, it is undisputed that the plea agreement misstated the applicable 

statutory maximum sentence of supervised release for Cedillo’s SORNA violation, 

as the agreement provides that the district court “may impose a term of supervised 

release of up to 3 years.” See 18 U.S.C. § 3583(k) (providing that a violation of 

§ 2250 has a five-year mandatory minimum term of supervised release and a 

maximum term of life). This paragraph of the plea agreement referencing a 

statutory maximum sentence of three years’ supervised release was a mistake of 

fact and not a promise by the government. Cedillo, moreover, concedes on appeal 

that the government did not expressly agree to recommend a three-year term of 

supervised release. Rather, his argument on appeal is that the government 

implicitly agreed to make such a recommendation. However, Cedillo’s plea 

agreement provided that, “[s]ubject only to the express terms of any agreed-upon 

sentencing recommendations contained in this agreement, [the government] further 

reserves the right to make any recommendation as to the quality and quantity of 

punishment.” The only express recommendation that the government agreed to 

make concerned a reduction in Cedillo’s offense level for his acceptance of 

responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), where certain 

circumstances were satisfied. Because the plea agreement explicitly provided that 

the government reserved the right to make any recommendation as to the term of 

punishment that should be imposed, with the exception of the express 

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acceptance-of-responsibility recommendation, Cedillo could not have reasonably 

understood that the government agreed to recommend a three-year term of 

supervised release. See Copeland, 381 F.3d at 1105. Thus, the government did not 

implicitly promise to recommend a three-year term of supervised release. 

Accordingly, Cedillo is unable to point to a promise that the government breached, 

and he cannot show error, let alone plain error, with respect to his sentence. 

For the foregoing reasons, we affirm Cedillo’s sentence of 33 months’ 

imprisonment and 30 years’ supervised release.

AFFIRMED.

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