[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________ ________________ No. 16

- 17146 Non

- Argument Calendar

________________________ D.C. Docket No. 8:13

- cr - 00324

- JSM

- TGW

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

ver sus MICHAEL LERMOS

- HERNANDEZ, Defendant

- Appellant.

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

________________________ ( November 17, 2017 )

Before TJOFLAT , WILLIAM PRYOR, and MARTIN , Circuit Judges. PER CURIAM:

Case: 16-17146 Date Filed: 11/17/2017 Page: 1 of 62 Michael Lermos

- Hernandez appeals his 199

- month sentence imposed after he agreed to plead guilty to conspiracy to commit bank fraud 1 and aggravated identity theft. 2 He argues on appeal that the government breached the plea agreement because it did not consider whether his cooperation efforts qualified as substantial assistance that would merit the filing of a motion to sentence him below the guideline range. 3 H is cla im is based on the government’s statement at sentencing that the cooperation provision was included at Lermos

- Hernandez’s request and “not because the government thought it was viable.” The claim that the government breached the plea agreement is unsupport ed by any evidence in the record

. The eight

- word phrase that provides the entire basis for Lermos

- Hernandez’s argument

— “not because the government thought it was viable”

— does not bolster his claim

. In fact, t he record supports the opposite conclusion th at the government did consider his cooperation efforts. Therefore, after thorough review, we affirm. I. We review whether the government has breached a plea agreement de novo

. United States v. Copeland , 381 F.3d 1101, 1104 (11th Cir. 2004). The governm ent must abide by a material promise in a plea agreement that induce s a defendant to

1 18 U.S.C. §§ 1344, 1349. 2 Id. § 1028A. 3 See id. § 3553(e); U.S. Sentencing Guidelines Manual § 5K1.1.

Case: 16-17146 Date Filed: 11/17/2017 Page: 2 of 63 plead guilty. United States v. Taylor , 77 F.3d 368, 370 (11th Cir. 1996). If the government fails to perform a promise on which the plea was based, it breaches the agree ment. United States v. Hunter , 835 F.3d 1320, 1324 (11th Cir. 2016). Whether the government breached the agreement is “ judged according to the defendant’s reasonable understanding at the time he entered his plea.” United States v. Boatner , 966 F.2d 1575, 1578 (11th Cir. 1992)

. We apply an objective standard to determine whether the government’s actions comport with “ the defendant’s understanding of the plea agreement.” Hunter , 835 F.3d at 1324

. II. Lermos

- Hernandez was indicted and arrested for theft an d credit card fraud in 2013. He promised the government repeatedly that he would cooperate and provide information related to major drug cases if he were released on bond. In October 2013 , h e was released on bond. In November, however, Lermos

Hernandez cut off his ankle monitoring bracelet and absconded from his home. He went on to commit more crimes of theft and fraud involving more than $100,000 before he was re

- arrested about thirteen months later in December 2014. I n March 2016, Lermos

- Hernandez pl e a d ed guilty to conspiracy to commit bank fraud and aggravated identity theft. In his plea agreement, Lermos

Hernandez agreed to “cooperate fully with the United States in the investigation

a nd prosecution of other persons” by providing “a full and complete disclosure of

Case: 16-17146 Date Filed: 11/17/2017 Page: 3 of 64 all relevant information.” If he completed his cooperation before his sentencing hearing, the government agreed to consider whether it qualified as substantial assistance

. 4 At his plea hearing, the magistrate judge emph asized to Lermos

Hernandez that the government was merely agreeing to consider filing the motion and not promising to do so. Lermos

- Hernandez indicated that he understood this. The government did not file a motion to lower Lermos

- Hernandez’s sentence bec ause it determined that his cooperation was not substantial assistance. T he government claimed that Lermos

- Hernandez’s cooperation was an attempt to “manipulate the United States” and use the “mirage of cooperation” to his advantage. Lermos

- Hernandez never told “the complete story, ” instead only telling the government information it already kn ew. In fact, one of the co

conspirators that Lermos

- Hernandez agreed to provide information about was already known to the government because he had first assist ed the government in apprehending Lermos

- Hernandez. But w hen asked about the unknown people who helped him break into a mall, Lermos

- Hernandez refused to provide their names. At sentencing, Lermos

- Hernandez argued that his cooperation should be reflected in a sentence below the guideline range . The government responded by

4 If the government determined Lermos

- Hernandez’s cooperation constituted substantial assistance, it could file a motion recommending either a downward departure from his sentencing guideline range, U.S. Sentencing Guidelines Manual § 5K1.1, or the impositi on of a sentence below a statutory minimum. 18 U.S.C. § 3553(e). Notably, both § 5K1.1 and § 3553(e) give the government “a power, not a duty, to file a motion when the defendant has substantially assisted.” Wade v. United States , 504 U.S. 181, 185, 112 S. Ct. 1840, 1843 (1992).

Case: 16-17146 Date Filed: 11/17/2017 Page: 4 of 65 describing the circumstances of his cooperation and stating that the cooperation provision in the plea agreement “was provided because [Lermos

- Hernandez] asked for it, not because the go vernment thought it was viable. ” The District Court sentenced Lermos

- Hernandez to 199 months , which it acknowledged was at the “high end” of the guideline range . He timely appealed. III. On appeal, Lermos

- He rnandez argues the government breached the plea agreement because its statement that the cooperation provision was i ncluded because he asked for it, “not because the government thought it was viable , ” shows that the government did not consider whether he substantially assisted. There is no other suppo rt for this contention. Indeed, there is evidence that the government did in fact consider whether Lermos

- Hernandez’s cooperative efforts constituted substantial assistance. Therefore, Lermos

- Hernandez’s argument must fail. Lermos

- Hernandez’s con tention is not supported by the government’s
statement in the first place . The government stated the cooperation provision was included in the plea agreement because Lermos

- Hernandez asked for it. The phrase “not because the government thought it was viable” exp lains that its viability was not the reason for including the provision

. It does nothing to explain whether or not the government thought it was viable. Without this, Lermos

Case: 16-17146 Date Filed: 11/17/2017 Page: 5 of 66 Hernandez can offer no evidence showing the government thought the cooperation provision was not viable at the time of the plea agreement. Even assuming arguendo that the government believed the provision to be inviable, there still is no evidence to show that the government refused to consider whether Lermos

- Hernandez’s cooperation efforts constituted substantial assistance. On the contrary , the evidence show s th at th e government did actually consider this. At the sentencing hearin g, the government described Lermos

- Hernandez’ s

coo peration efforts in detail, showing that he only offered information already known to the government while concealing information that would have assisted. Th e description of his cooperation efforts and the evaluation of t heir quality suggest tha t their m erits were considered by the government

. No evidence supports Lermos

- Hernandez’s contention that the government breached his plea agreement. The single spoken clause he latches onto in support of his argument

— “not because the government believed [the cooperation provision] was viable”

— does not help. Th e record indicates that the government actually did consider whether Lermos

- Hernandez’s cooperation constituted substantial assistance. The government concluded that it did not, and accordingly it did not file a motion to support reducing his sentence. T herefore, t he plea agreement was not breached. We affirm. AFFIRMED. Case: 16-17146 Date Filed: 11/17/2017 Page: 6 of 6