FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 25, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-17002

Non-Argument Calendar

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D. C. Docket No. 07-00272-CR-01-WBH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GEORGE BRETT GRAHAM,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(August 25, 2009)

Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
George Brett Graham appeals his convictions and sentences for passing

counterfeit Federal Reserve notes, in violation of 18 U.S.C. § 472. Graham argues:

(1) the government erroneously breached his initial plea agreement that was

executed in North Carolina, by applying a subsequent agreement in Georgia after

the case was transferred; and (2) his trial counsel was ineffective for allowing him

to enter into the allegedly less-favorable Georgia agreement. We address these

arguments in turn and affirm Graham’s convictions and sentences.

I.

Graham argues the government was bound by, and consequently breached,

the plea agreement executed in North Carolina, which allegedly contained more

favorable terms. Although we typically review de novo whether the government

has breached a plea agreement, United States v. Al-Arian, 514 F.3d 1184, 1191

(11th Cir.), cert. denied, 129 S. Ct. 288 (2008), Graham failed to raise a

contemporaneous objection in the district court, so we review the alleged breach

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for plain error, United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008), cert. denied, 129 S. Ct. 1668 (2009). Plain error exists if there was

Graham argues the district court also erred in failing to elicit objections from him after

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sentencing. See United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990) (instructing the district

court to “elicit fully articulated objections, following imposition of a sentence, to the court’s

ultimate findings of fact and conclusions of law”), overruled in part on other grounds by United

States v. Morrill, 984 F.2d 1136, 1137 (11th Cir. 1993). The record supports the fact that the district

court elicited objections from Graham’s attorney after sentencing, so we conclude the court properly

discharged its obligations under Jones.

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(1) error; (2) that is plain, in that it is “clear or obvious, rather than subject to

reasonable dispute”; (3) that affects defendant’s substantial rights in that it would

affect the outcome of the trial; and (4) if the first three prongs are satisfied, we

have the discretion to remedy the error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Puckett v. United States,

129 S. Ct. 1423, 1429 (2009) (internal quotation marks omitted).

Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding of the agreement at the time he entered the

plea. United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If the

government disputes the defendant’s understanding, however, we determine the

terms of the agreement according to objective standards. Id. The standards to be

applied to the interpretation of a plea agreement are as follows: (1) hyper-technical

and rigid construction of the language in a plea agreement are unacceptable; (2) the

written agreement should be viewed against the background of the negotiations and

should not be interpreted to contradict directly an oral understanding; and (3) an

ambiguous plea agreement must be read against the government. United States v.

Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990). This method of interpretation

reflects the fact that a plea agreement “constitutes a waiver of substantial

constitutional rights,” and the defendant needs to be adequately warned of the

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consequences. Id. When a breach of an agreement by the government has been

established, we may either order specific performance of the agreement, by means

of re-sentencing before a different judge, or allow withdrawal of the plea.

Santobello v. New York, 92 S. Ct. 495, 499 (1971).

In this case, there was no error, much less plain error, because the Georgia

plea agreement superseded the North Carolina agreement. The record

demonstrates that Graham voluntarily and knowingly entered the guilty plea in

Georgia and that he reasonably understood its superseding effect. See Rewis, 969

F.2d at 988. Moreover, Graham was on notice that the Georgia agreement

intended to supersede the North Carolina agreement because the clear and

unambiguous Georgia agreement contained two integration clauses notifying him

that no other agreements or promises from the government would be valid.

Accordingly, we affirm as to this issue.

II.

Graham argues, alternatively, if we hold that the Georgia plea in fact

superseded the North Carolina plea, his trial counsel was ineffective in advising

him to accept the less favorable plea. He contends this claim can be properly

addressed on direct appeal because the ineffectiveness was apparent from the

record. “We will not generally consider claims of ineffective assistance of counsel

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raised on direct appeal where the district court did not entertain the claim nor

develop a factual record.” United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002). “In a few exceptional cases, however, we have taken review of [such] a

claim . . . raised for the first time on appeal when the matter was fully apparent on

the existing record.” United States v. Gholston, 932 F.2d 904, 905 (11th Cir.

1991).

We decline to address Graham’s ineffective-assistance-of-counsel claim

because he did not raise the issue below and the record consequently was

undeveloped as to the merits of the allegation. See id. For these reasons, we

affirm Graham’s convictions and sentences.

AFFIRMED.

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