### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-51075 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RODNEY HARRISON, also known as Black Boy, also known as R odney Elvy Harrison, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 5:12-CR-464-1

Before WIENER, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Rodney Harrison plead e d guilty t o conspiracy to possess with intent to distribute more than 28 grams o f coc a ine base in violation of 21 U.S.C. § 846, and he was sentenced to 120 months of imprisonment and four years of supervised release. H a r r i s on pleaded guilty pursuant to a p lea agreement in which he waived the right to appeal his sentence. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 13, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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Harrison argues that the Government breached its plea agreement when the United States Probation Officer applied the career offender enhancement in U.S.S.G. § 4B1.1, thereby, in his view, failing to provide the required notice that it intended to s eek an increased mandatory minimum sentence under 21 U.S.C. § 851. He contends that prior to his guilty plea, the Governme n t w r o t e to his attorney and explained that it would agree not to seek an adjustment b ased on the career offende r enhancement, contingent upon H arrison’s agreement to plead guilty. The Government contends that nothing in the p lea agreement a ddressed whether Harrison would receive a c a r e er o ffender enhancement under the Sentencing Guidelines. The Government argues that Harrison is c o nfusing a statutory sentence enhancement under §§ 841 and 851 with the c areer-offender guidelineenhancement under § 4B1.1. Although Harrison waiv e d his right to appeal his s e ntence in his plea agreement, we have held t hat “an alleged breach o f a plea agreement may be raised despite a waiver provision.” United States v. Roberts , 624 F

. 3d 241, 244 (5th Cir. 2010) (citing United States v. Keresztury , 293 F.3d 750, 7 55-57 (5th Cir. 2002). As a general rule, whether the Government breached a plea agreement is a question o f law subject to de novo review, b u t i n this case our review is l i m ited to plain e rror b ecause Harrison did not raise the breach issu e i n t h e district court. See U

nited States v. Reeves , 2 55 F.3d 208, 2 10 (5th Cir. 2001). To prevail on plain error review, Harrison must show that an error occurred, that the error was clear or obvious, and that the error affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). In those circumstances, we still must determine whether to exercise discretion to c o rrect the error. United States v. Escalante-Reyes , 689 F.3d 415, 425 (5th Cir. 2012)(en banc). In determining whether the Government has breached a p l ea agreement,

we e x amine whether the Government’s conduct is consistent wit h t he defendant’s reasonable understanding of the agreement. United States v. 2 Case: 12-51075 Document: 00512340315 Page: 2 Date Filed: 08/13/2013No. 12-51075

Pizzolato , 655 F.3d 403, 409 (5th Cir. 2011), cert. denied , 1 32 S. Ct. 1126 (2012). The defendant has the burden of establishing the facts showing a breach. Id

. Although it is not part of the wr i t t e n plea agreement, the G overnment agreed in e-mail c orrespondence with Harri s o n ’ s counsel that although “the government has the option of filing a notice of enhancement pursuant to 21 U.S.C. section 8 51, in which case the statutory m andatory m i n i m u m s entence would be increased from 5 years t o 10 years, and the term o f supervised release would be increased f

rom 4 t o 8 years” the Government would “agree not to file

a notice of enhancement if your client pleads promptly, i.e. before the next Ellis deadline.” The c orr e s p o n d e nc e di d n ot m e ntio n the career offender enhancement under the Sentencing Guidelines in § 4B1.1. The record shows that the Government c omplied with its agreement not to s eek a statutory sentence enhance m e n t u n der § 851. The G overnment correctly argues that a statutory s entence enh anc e m e nt under § 841(b) a nd § 851 is different f

rom a career offender s e ntence enhancement under § 4B1.1 of the Guidelines. Harrison’s sentence was enhanced under § 4 B1.1, not § 841(b), and he therefore w as not entitled to notice und e r § 8 5 1

. See United States v. Marshall , 910 F.2d 1 241, 1245 (5th Cir. 1990). Harrison “could n o t have reasonably u nd e r stood the plea agreement” as prohibiting the career offender enhancement. See Pizzolato , 655 F.3d at 410. Harrison h a s not demonstrated plain error in the application of the career o f fender guideline under his plea

a greement. See Reeves , 255 F.3d at 210. We therefore do not need to addr e s s Harrison’s argument about whether the inclusion of the c areer-offender

e nhancement in the Pre-Sentence Report at the direction o f the U nited St a t e s Probation Office could qualify as a “Government breach.” The Government argues that Harrison’s appeal waiver s hould be enforced and his appeal should b e dismissed. Harrison has the right to appeal in order to challenge his appeal w aiver on grounds of breach of the p l ea agreement by the Government. See Roberts , 624 F.3d at 244. However, having determined that
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the Government did not breach the plea agreement, Harrison m ay not appeal his sentence. See Keresztury , 293 F.3d at 756-57 (distinguishing issue of breach of plea a greement from sentencing issue); Pizzolato , 655 F

. 3 d at 411-12 (determining that Government did not b reach the plea agreement and that the appeal waiver thus applied to the sentencing challenge). Although Harrison does not clearly delineate a sentencing issue separate from his argument that the Government breached th e plea agreement, he does argue that the career offender enhancement was improper and that the district court lacked the authority to enhance his sentence based u pon a prior conviction because the Gover n ment failed to comply with the n otice procedures of § 851. He asks that his case be remanded to the district court for a new sentence. Because the Government did n o t breach the p lea a greement, the appeal waiver is enforced to p reclude consideration of this sentencing issue. H owever, because H arrison had the right t o appeal t o challenge the appeal waiver in the plea agreement based on a breach, w e do n ot dismiss the a ppeal, but we affirm his sentence. See Roberts , 624 F.3d at 244; Pizzolato , 655 F.3d at 412. AFFIRMED.

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