[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 16570 Non

- Argument Calendar

________________________ D.C. Docket No. 2:12

- cr - 00030

- MEF

- WC

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus ANTHONY TYRONE JONES, Defendant

- Appellant.

________________ ________ Appeal from the United States District Court for the Middle District of Alabama

________________________ (November 15, 2013) Before HULL , MARCUS and MARTIN, Circuit Judges. PER CURIAM:

Case: 12-16570 Date Filed: 11/15/2013 Page: 1 of 62 Anthony Tyrone Jones appeals the 96

- month sentence imposed by the district cour t upon his plea of guilty . Jones argues, and the government agrees, that the court erred when it refused to sentence Jones to 92 months, as both parties had intended under the plea agreement

. We agree that the district court clearly erred in its interpre tation of the agreement , and grant Jones the relief he seeks: specific performance.
I. In February 2012, a federal grand jury returned an indictment charging Jones with three drug felonies. After initially pleading not guilty, Jones and the government neg otiated a plea agreement. As part of the plea agreement, the government and Jones agreed that “the appropriate sentence for the offense to which [Jones] is pleading guilty is the bottom end of the applicable Guideline range.” Pursuant to this agreement, Jones pleaded guilty

. The district court accepted the plea agreement and noted that it intended to follow its terms. Jones was determined to have a Guidelines range of 92

– 115 months. R ather than sentencing Jones to the lowest sentence under the Guidelines, however, the district court imposed a sentence of 96 months. Jones objected to the imposition of a sentence higher than 92 months because it was inconsistent with his understanding of the plea agreement. T he district court recognized on the record that the imposed sentence “may have deviated from a binding plea

Case: 12-16570 Date Filed: 11/15/2013 Page: 2 of 63 agreement, ” but nevertheless declined to modify the sentence. The district court insisted that the terms of the agreement allowed for a sentence higher than 92
mont hs because the agreement said “the bottom end of the guideline range” rather than “the bottom of the guideline range.”
II. A plea agreement “is, in essence, a contract between the Government and a criminal defendant.” United States v. Howle , 166 F.3d 11 66, 1168 (11th Cir. 1999). Whether a binding plea agreement has been breached is a question of law that we review de novo

. United States v. Al

- Arian , 514 F.3d 1184, 1191 (11th Cir. 2008). “ However, the district court’s factual findings regarding the scope of the agreement will be set aside only if they are clearly erroneous.” Id. In resolving a dispute over the meaning of terms in a plea agreement , we apply an objective standard to determin e whether the alleged violation of the agreement is inconsistent with what the defendant reasonably understood when he entered his plea. United States v. Copeland , 381 F.3d 1101, 1105 (11th Cir. 2004). We do not accept a “hyper

- technical reading” or a “r igidly literal approach in the construction of the language.” United States v. Jeffries , 908 F.2d 1520, 1523 (11th Cir. 1990) (quotation marks omitted )

. We also view the agreement against the background of the negotiations, and do no t interpret it in a w ay that directly contradicts any oral understandings. Id. Finally, to the extent there are any

Case: 12-16570 Date Filed: 11/15/2013 Page: 3 of 64 ambiguities in the agreement, we consider extrinsic evidence of the parties’ intent and, if necessary, construe the ambiguity against the government. Id. ; see also Copeland , 381 F.3d at 1105

– 06

. III.
We must first decide whether “ the bottom end of the guideline range” is ambiguous. See Copeland , 381 F.3d at 1106. We conclude that it is not , and that it was clear error for the district court to sentence Jones inconsistent with the unambiguous meaning of the accepted plea agreement’s sentencing provision

. While we have not addressed this precise question in a published opinion, this Court has previously interpreted the phrase “sentence at the low end of the

a pplicable guideline range”

— a phrase similar to that used in Jones’s agreement

— to unambiguously mean “ the lowest number of months of imprisonment designated in the sentencing table.” United States v. Worden , 172 F. App’x 981, 983 (11th Cir. 2006) ; see also United States v. Parker , 280 F. App’x 899, 901 (11th Cir. 2008) (“[T]he ‘low end’ of the Guidelines sentence range is simply the lowest possible sentence within that range

. ” ). 1 The plain meaning of the terms supports this interpretation. As is relevant, “bottom” means “the lowest part or place.” Merriam Webster ’s Collegiate Dictionary 134 (10th ed. 2000)

. W e a gree with the

1 This interpretation is also consistent with the way in which this Court uses the phrase, albeit in cases that do not squarely address the interpretation of a plea agreement’s terms. See, e.g. , United States v. Shelton , 400 F.3d 1325, 1328 (11th Cir. 2005) (characterizing “the most lenient sentence” in the applicable range as “a s entence at the low end of the Guidelines range”).

Case: 12-16570 Date Filed: 11/15/2013 Page: 4 of 65 Worden panel that the objective meaning of “end” as modified by a term such as “bottom” is clear: the bottom point of the applicable advisory G uideline range. Even if the phrase were ambiguous, b oth Jones and the government agree that they intended Jones to be sentenced to the lowest number in the applicable
G uideline range. In light of the evidence of the parties’ intent before the district court at the sentence hearing , the court clearly erred when it imposed a sentence contrary to that unified intent. S ee Copeland , 381 F.3d at 1105

– 06 (noting that we look to the parties’ intent in construi ng an ambiguous plea agreement); United States v. Yesil , 991 F.2d 1527, 1532

– 33 (11th Cir. 1992) ( reversing where the district court failed to follow the terms of the plea agreement); see also United States v. Vallejo , 463 F. App’x 849, 852 (11th Cir. 2012) (noting that, if a plea agreement was ambiguous, it would be error for a court to impose a sentence contrary to the intent of the parties to the agreement because the defendant “would not have reasonably understood

. . . that the Court was going to override the terms of the plea agreement it had already accepted”). When a court accepts a plea agreement, but then denies the defendant the benefit of that agreement, the defendant is entitled to specific performance or the opportunity to withdraw his guilty plea. Yesil , 991 F.2 d at 1532

– 33 (defining the appropriate remedies when a court violates the terms of a plea agreement it has already accepted)

. Here, the government urges us to remand so that Jones may

Case: 12-16570 Date Filed: 11/15/2013 Page: 5 of 66 withdraw his plea if he so chooses . Jones, on the other hand, asks for specific performance of the benefit for which he bargained

— a sentence of 92 months. We agree that specific performance is appropriate here

. This C ourt generally enforces the specific terms of a plea agreement in the face of a violation so long as the defendant “entered into his plea agreement freely and intelligently, and adhered to his part of the bargain.” United States v. Boatner , 966 F.2d 1575, 1580 (11th Cir. 1992). Jones entered his plea voluntarily and intelligently, and he has already per formed his obligations under the plea agreement

. For these reasons , we VACATE and REMAND with instructions that Jones be resentenced to 92 months in keeping with the terms of the agreement he and the government negotiated

.

Case: 12-16570 Date Filed: 11/15/2013 Page: 6 of 6