[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14072

Non-Argument Calendar

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D.C. Docket No. 1:18-cr-20942-RKA-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

ALIET HUSSEIN, 

a.k.a. Aliet Pino Garcia, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(November 10, 2020)

Before MARTIN, ROSENBAUM, and LAGOA, Circuit Judges.

PER CURIAM: 

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Aliet Hussein (“Hussein”) appeals the denial of her motion for specific 

performance of her plea agreement. Hussein argues that the government breached 

the plea agreement by advocating for a three-level aggravating role enhancement 

and opposing her motion for a downward variance. For the following reasons, we 

affirm. 

I. FACTUAL AND PROCEDURAL HISTORY

From about February 2015 to December 2018, Hussein owned and operated 

Sky Pharmacy. Through Sky Pharmacy, Hussein engaged in a scheme in which she 

submitted, or caused the submission of, false Medicare Part D claims for 

prescriptions that were never filled. On December 6, 2018, the government charged 

Hussein with twelve counts of health care fraud in violation of 18 U.S.C. § 1347. 

On July 24, 2019, Hussein entered into a plea agreement with the government. 

Hussein agreed to plead guilty to Count 1 of the indictment, and the government 

agreed to dismiss the remaining counts after sentencing. Paragraph 7 of the plea 

agreement stated as follows:

This Office and the defendant agree that, although not binding 

on the probation office or the Court, they will jointly recommend that 

the Court make the following findings and conclusions as to the 

sentence to be imposed:

a. Base Offense Level: the parties agree that the base offense 

level applicable to the defendant’s conduct is level six (6) pursuant to 

Sentencing Guidelines §2B1.1(a)(2).

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b. Intended Loss: the parties agree that the defendant’s 

participation in the offense caused an intended loss to Medicare 

exceeding $1.5 million but not exceeding $3.5 million, resulting in a 

sixteen (16) level enhancement pursuant to Sentencing Guidelines 

§2B1.1(b)(1)(I).

c. Federal Health Care Program: the parties agree that the 

defendant’s offense of conviction is a Federal health care offense 

involving a Government health care program, and the loss to the 

Government health care program exceeds $1 million but does not 

exceed $7 million, resulting in a two (2) level enhancement under 

Sentencing Guidelines §2B1.1(b)(7).

Then Defendant remains free to advocate for or against any other 

sentencing adjustments under the guidelines, and to argue for 

sentencing variances under 18 U.S.C. § 3553(a).

(emphasis in original). The government further agreed to recommend, under certain 

conditions, a two-level reduction for acceptance of responsibility pursuant to 

U.S.S.G. § 3E1.1(a), an additional one-level reduction pursuant to U.S.S.G. 

§ 3E1.1(b) if the offense level at the time of sentencing was sixteen or greater, and 

“that the Defendant receive a sentence at the low-end of the sentencing guidelines, 

as those guidelines are calculated by Probation.” 

In Paragraph 5 of the plea agreement, the government reserved its rights as 

follows:

This Office reserves the right to inform the Court and the 

probation office of all facts pertinent to the sentencing process, 

including all relevant information concerning the offenses committed, 

whether charged or not, as well as concerning the defendant and the 

defendant’s background. Subject only to the express terms of any 

agreed-upon sentencing recommendations contained in this agreement, 

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this Office further reserves the right to make any recommendation as to 

the quality and quantity of punishment.

The plea agreement included a warning that:

[A]ny estimate of the probable sentencing range or sentence that the 

defendant may receive, whether that estimate comes from the 

defendant’s attorney, this Office, or the probation office is a prediction, 

not a promise, and is not binding on this Office, the probation office or 

the Court. The defendant understands further that any recommendation 

that this Office makes to the Court as to sentencing, whether pursuant 

to this agreement or otherwise, is not binding on the Court and the Court 

may disregard the recommendation in its entirety.

Finally, the plea agreement included an integration clause, stating: “This is the entire 

agreement and understanding between this Office and the defendant. There are no 

other agreements, promises, representations, or understandings.” 

The Presentence Investigation Report (“PSI”) mostly accorded with the plea 

agreement. Applying the 2018 Sentencing Guidelines, the PSI set the base offense 

level at six. See U.S.S.G. § 2B1.1(a)(2). The PSI also recommended a sixteen-level 

enhancement because the loss amount was between $1.5 million and $3.5 million

and a two-level enhancement because the conviction involved a loss of greater than 

$1 million to a federal health care program. See id. § 2B1.1(b)(1)(I), (b)(7)(A). The 

PSI further recommended a three-level reduction for acceptance of responsibility. 

See id. § 3E1.1(a)–(b). The PSI departed from the plea agreement, however, in 

recommending a three-level enhancement because “the defendant was a manager or 

supervisor (but not an organizer or leader) of a criminal activity that was otherwise 

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extensive.” See id. § 3B1.1(b). The PSI calculated a total offense level of twentyfour. With a criminal history category of I, the recommended guideline range was 

fifty-one to sixty-three months of imprisonment. See U.S.S.G. Sentencing Table,

ch. 5, pt. A. Had the PSI not applied the three-level role enhancement, the total

offense level would have been twenty-one and the guideline range would have been 

thirty-seven to forty-six months’ imprisonment. See id. The statutory maximum 

sentence was ten years. See 18 U.S.C. § 1347(a).

Hussein filed objections to the PSI, specifically objecting to the three-level 

role enhancement. She also moved for a downward variance pursuant to 18 U.S.C. 

§ 3553. The government responded that the role enhancement was appropriate and 

opposed a downward variance. Hussein then moved for specific performance, 

arguing that the government had violated the plea agreement by advocating for the 

role enhancement and opposing a downward variance. Hussein argued that, because 

Paragraph 7 of the plea agreement specified that the defendant was free to advocate 

for or against additional sentencing adjustments, it unambiguously precluded the 

government from advocating for sentencing enhancements beyond those agreed to 

as part of the plea. She also attached email correspondence between herself and the 

government stating that “[i]f the Defendant goes to trial, we will seek enhancements 

for role.” Finally, Hussein argued that the plea agreement’s statement that she was 

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free to argue for a downward variance created the “‘reasonable understanding’ that 

the Government would not oppose her motion for a variance.” 

The district court conducted a sentencing hearing on October 4, 2019. 

Looking specifically at Paragraph 5 and Paragraph 7, the district court found “that 

the most reasonable reading of the plea agreement is that the plea agreement is 

unambiguous in allowing either the government or probation, or both, to seek 

enhancements, allowing [Hussein] to seek reductions, and, of course, allowing 

[Hussein] to oppose those enhancements, if they are advocating for those 

enhancements.” The district court, therefore, concluded that the government did not 

breach the plea agreement by advocating for a role enhancement and opposing a 

downward variance. 

Next, the district court addressed the merits of the three-level role 

enhancement. The court sustained in part and overruled in part Hussein’s objection, 

finding that she was an organizer, leader, manager, or supervisor of criminal activity, 

but that the government had not met its burden to prove that the criminal activity 

was “otherwise extensive.” The court therefore imposed a two-level enhancement 

pursuant to U.S.S.G. § 3B1.1(c), rather than the three-level enhancement 

recommended in the PSI. This resulted in an offense level of 23 and a guideline 

range of forty-six to fifty-seven months of imprisonment. See U.S.S.G. Sentencing 

Table, ch. 5, pt. A. Pursuant to the plea agreement, the government advocated for a 

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sentence of forty-six months, the low end of the range. The government also 

reiterated its opposition to a downward variance. Hussein argued in favor of a 

downward variance, requesting house arrest. She called two witnesses in support of 

her argument and testified on her own behalf. The court denied the downward 

variance and sentenced Hussein to forty-six months of imprisonment, as well as 

restitution of $1,884,867.09, three years of supervised release, and a $100 special 

assessment. This appeal ensued.

II. STANDARD OF REVIEW

“We review de novo whether the government breached a plea agreement.” 

United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007).

III. ANALYSIS

“[W]hen a plea rests in any significant degree on a promise or agreement of 

the prosecutor, so that it can be said to be part of the inducement or consideration, 

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). 

Plea agreements are typically interpreted using contract interpretation tools. United 

States v. Jeffries, 908 F.2d 1520, 1523 (11th Cir. 1990). In determining whether the 

government breached a plea agreement, we must first ascertain the scope of the 

government’s promises. United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 

2004). “The district court’s factual findings on the scope of the agreement will be 

set aside only if they are clearly erroneous.” Id.

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Hussein contends that the plea agreement prohibited the government from 

advocating for a role enhancement or opposing a downward variance. In Paragraph 

5 of the plea agreement, the government plainly reserved its rights to “inform the 

Court and the probation office of all facts pertinent to the sentencing process” and

to “make any recommendation as to the quality and quantity of punishment.” The 

government did just that when it advocated for a role enhancement and opposed a 

downward variance. This reservation of rights was “[s]ubject only to the express 

terms of any agreed-upon sentencing recommendations contained in th[e] 

agreement.” Hussein argues that this language means that the government was not 

authorized to make recommendations beyond those expressly agreed to in the plea. 

But a plain reading of this language indicates that the government could not 

contradict the express terms of the plea. On matters where the plea agreement was 

silent, including a role enhancement and downward variance, the government was 

free to “make any recommendation as to the quality and quantity of punishment.”

Cf. Raulerson, 901 F.2d at 1012 (“Raulerson failed to negotiate for or failed to obtain 

the government’s silence at his sentencing hearings; thus, we hold that the 

government did not breach its agreement regarding standing mute.”).

Hussein argues that Paragraph 5 conflicts with Paragraph 7 and that because 

Paragraph 7 is more specific, it should control. See United States v. Pielago, 135 

F.3d 703, 710 (11th Cir. 1998) (“When two contract terms conflict, the specific term 

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controls over the general one.”). Hussein further argues that because Paragraph 7 

gave her, and not the government, the right to advocate for sentencing adjustments 

and variances, the government’s right to advocate beyond the terms of the agreement 

was limited through omission. We conclude, however, that the two paragraphs are 

not in conflict but rather, they complement each other. Paragraph 7 lays out specific 

terms of the plea agreement and reserves Hussein’s rights, while Paragraph 5 

reserves the government’s rights. Reading both paragraphs together, it is clear that 

the government and Hussein were jointly bound to make the recommendations listed 

in Paragraph 7, Hussein was “free to advocate for . . . any other sentencing 

adjustments,” and the government reserved its rights to “make any recommendation 

as to the quality and quantity of punishment,” which Hussein was “free to advocate 

. . . against.” Likewise, although Paragraph 7 made clear that Hussein was “free . . . 

to argue for sentencing variances under 18 U.S.C. § 3553(a),” the plea agreement 

neither made a promise nor contained any language precluding the government from 

opposing the request for a sentence variance. 

We find this Court’s decisions in United States v. Boatner, 966 F.2d 1575 

(11th Cir. 1992), and United States v. Taylor, 77 F.3d 368 (11th Cir. 1996), 

instructive regarding the type of inconsistent statements at sentencing that could 

constitute a breach of the plea agreement by the government. In Boatner, the 

government “provid[ed] information to the court in the presentence investigation 

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report which contradicted a factual stipulation with the defendant.” 966 F.2d at 

1576. In Taylor, the government “promise[d] to recommend a ten-year sentence” 

but then “[a]dvoca[ted] [for] a position requiring a greater sentence.” 77 F.3d at 370. 

Here, in contrast, there was no contrary statement of fact, nor did the plea 

agreement promise that the government would recommend a particular sentence. 

Rather, in the plea agreement, the government promised that it would make five 

discrete recommendations: (1) a base offense level of six; (2) a sixteen-level loss 

amount enhancement; (3) a two-level federal health care offense enhancement; (4) a 

three-level acceptance of responsibility reduction, subject to certain conditions; and 

(5) a sentence on the low end of the guideline range. The record shows that the 

government made each of the five promised recommendations.

IV. CONCLUSION

Because we find that the terms of the plea agreement were unambiguous, and 

that the government did not breach those terms, we affirm the district court’s denial 

of Hussein’s motion for specific performance.

AFFIRMED.

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