United States Court of Appeals

for the Fifth Circuit

No. 19-40307

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Matthew Jay Thompson, also known as Pie Face, 

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:17-CR-735-9

Before Jones, Barksdale, and Stewart, Circuit Judges.

Per Curiam:*

Matthew Jay Thompson pleaded guilty, pursuant to a written plea 

agreement (which included an appeal waiver), to conspiracy to possess, with 

intent to distribute, more than 50 grams of methamphetamine, in violation of 

21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). He was sentenced to, inter alia, a 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 27, 2020

Lyle W. Cayce

Clerk

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within-Sentencing Guidelines term of 168-months’ imprisonment. 

Thompson challenges his sentence, asserting: the Government breached the 

plea agreement by failing to move for a two-level acceptance-of-responsibility 

reduction under Guideline § 3E1.1(a) and a one-level acceptance-ofresponsibility reduction under Guideline § 3E1.1(b); and the district court 

erred when it denied him a reduction for acceptance of responsibility. 

First addressed is whether the Government breached the plea 

agreement. “[A]n alleged breach of a plea agreement may be raised despite 

[an included] waiver provision”. United States v. Pizzolato, 655 F.3d 403, 409 

(5th Cir. 2011) (citation omitted). Such an alleged breach is reviewed de novo. 

Id. We need not reach whether Thompson failed to preserve this issue, 

prompting plain-error review, as even under a de novo standard, his challenge

fails. See United States v. Purser, 747 F.3d 284, 290 (5th Cir. 2014).

“In determining whether the terms of the plea bargain have been 

violated, [this] court must determine whether the government’s conduct is 

consistent with the parties’ reasonable understanding of the agreement.” 

United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (citations 

omitted). If the Government breaches a plea agreement, defendant is 

released from an appeal waiver contained in it. Id.

Thompson’s assertion that the Government breached the agreement 

by failing to move for an acceptance-of-responsibility reduction under 

Guideline § 3E1.1(a) and (b) is not supported by a reasonable understanding

of the agreement. See id. It did not obligate the Government to move for a 

two-point reduction under Guideline § 3E1.1(a). Rather, the Government 

was required to move for a one-level reduction under Guideline § 3E1.1(b), 

but only “[i]f the Court determines that Defendant qualifies for an 

adjustment under [Guideline §] 3E1.1(a)”, which did not occur. 

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Thompson asserts the Government was required to recommend an 

acceptance-of-responsibility reduction unless he committed a crime, which 

he asserts applies only if he was indicted for one. The plea agreement 

imposed no such obligation. Instead, it provided: “Should it be judged by 

the Government the Defendant has committed or attempted to commit any 

additional crimes from the date of the Defendant’s signing of this plea 

agreement to the date of the Defendant’s sentencing, the Government will 

be released from its obligations to recommend credit for acceptance of 

responsibility”. If the Government did have any obligation to recommend an 

acceptance-of-responsibility reduction, it was released from that obligation 

when it determined Thompson had committed or attempted to commit 

additional crimes. The Government presented evidence that Thompson 

continued to deal drugs, evidence that he fails to refute other than in a 

conclusory manner.

In short, the Government was not obligated to move for an

acceptance-of-responsibility reduction under Guideline § 3E1.1(a) or (b). 

The Government, therefore, did not breach the plea agreement. 

In addition to his assertion that the Government breached the plea 

agreement by not moving for an acceptance-of-responsibility reduction, 

Thompson separately asserts the court erred in denying him a reduction for 

acceptance of responsibility. Our court reviews de novo whether an appealwaiver in a plea agreement bars an appeal, considering: “whether the waiver 

was knowing and voluntary”; and “whether, under the plain language of the 

agreement, the waiver applies to the circumstances at issue”. United States 

v. Harrison, 777 F.3d 227, 233 (5th Cir. 2015) (citation omitted). Thompson 

does not challenge the knowing or voluntary nature of the waiver. Under the 

plain language of the plea agreement, the waiver applies to the circumstances 

at hand, because he “knowingly and voluntarily waive[d] the right to appeal 

or ‘collaterally attack’ the conviction and sentence, except . . . to raise a claim 

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of ineffective assistance of counsel”. Thompson’s appeal waiver, therefore,

bars his challenge to the district court’s denying an acceptance-ofresponsibility reduction. See United States v. Bond, 414 F.3d 542, 544-45 (5th 

Cir. 2005). 

DISMISSED.

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