[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-17146

Non-Argument Calendar

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D.C. Docket No. 8:13-cr-00324-JSM-TGW-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

MICHAEL LERMOS-HERNANDEZ,

 Defendant - Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(November 17, 2017)

Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM: 

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Michael Lermos-Hernandez appeals his 199-month sentence imposed after 

he agreed to plead guilty to conspiracy to commit bank fraud1 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

 His claim 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 unsupported

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, the record supports the opposite 

conclusion that 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 government 

must abide by a material promise in a plea agreement that induces 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.

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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 

agreement. 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 and 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, he was released on bond. In November, however, LermosHernandez 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. 

In March 2016, Lermos-Hernandez pleaded guilty to conspiracy to commit 

bank fraud and aggravated identity theft. In his plea agreement, LermosHernandez agreed to “cooperate fully with the United States in the investigation 

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

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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 emphasized to LermosHernandez 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 because it determined that his cooperation was not substantial assistance. 

The 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 knew. In fact, one of the coconspirators that Lermos-Hernandez agreed to provide information about was 

already known to the government because he had first assisted the government in 

apprehending Lermos-Hernandez. But when 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 imposition 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).

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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 government 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-Hernandez argues the government breached the plea

agreement because its statement that the cooperation provision was included 

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 support 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 contention 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” explains 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, LermosCase: 16-17146 Date Filed: 11/17/2017 Page: 5 of 6 
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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 shows that the government did actually consider this. 

At the sentencing hearing, the government described Lermos-Hernandez’s 

cooperation efforts in detail, showing that he only offered information already 

known to the government while concealing information that would have assisted. 

The description of his cooperation efforts and the evaluation of their quality 

suggest that their merits 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. The 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. Therefore, the plea 

agreement was not breached. We affirm.

AFFIRMED.

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