IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20116

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

CURTIS JAMES CLUFF, 

 Defendant - Appellant. 

Appeal from the United States District Court 

for the Southern District of Texas 

Before SMITH, and HAYNES, Circuit Judges, and JUNELL, District Judge.* 

JUNELL, District Judge: 

Curtis Cluff pleaded guilty to conspiracy to possess with intent to 

distribute cocaine under 21 U.S.C. §§ 841, 846, and was sentenced to 

99 months’ imprisonment and 5 years of supervised release. Following his 

sentence, Cluff filed a motion for new trial, alleging the Government breached 

the plea agreement. The district court denied the motion and Cluff appealed. 

We AFFIRM.

I. 

In October 2014, Curtis Cluff was charged in a two-count indictment 

with conspiracy to possess with intent to distribute cocaine under 21 U.S.C. 

 

* District Judge of the Western District of Texas, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2017

Lyle W. Cayce

Clerk

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§§ 841, 846, and aiding and abetting bulk cash smuggling under 31 U.S.C. 

§ 5332 and 18 U.S.C. § 2. The events giving rise to those charges occurred in 

2011; however, Cluff entered into an agreement with the Government in 

January 2012 to work as a confidential informant. The Government states the 

agreement provided that as long as he was working for the Government, he 

would not be prosecuted. Cluff continued working in this capacity until March 

2014 when he was hospitalized after being shot by a police officer who was the 

subject of an investigation in which Cluff was assisting. 

In March 2015, Cluff moved to dismiss the indictment based on the 

doctrine of equitable immunity. Therein, Cluff stated he believed that as long 

as he cooperated with law enforcement, he would not be prosecuted at all.1 He 

also explained the only reason he ceased working as an informant was because 

all contact with his supervising agents ceased after he was shot. The 

Government filed a response in opposition to Cluff’s motion, acknowledging 

that they had approached Cluff to be an informant, but denying any promise 

or representation had been made by a law enforcement officer or prosecutor 

that he would not be charged. Cluff was informed he would ultimately be 

charged once his cooperation was complete.

Upon the district court’s denial of the motion to dismiss, Cluff pleaded 

guilty to count one—conspiracy to possess with intent to distribute cocaine—

and entered into a plea agreement with the Government. The agreement 

provided that the Government would move to dismiss count two; recommend a 

two-level downward adjustment for acceptance of responsibility “should the 

defendant accept responsibility as contemplated by the Sentencing 

Guidelines”; recommend an additional one-level reduction based on the 

 

1 In the motion, he alleged that he was “offered the opportunity of freedom for him 

and his family” if he worked as an informant.

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timeliness of his plea; recommend he only be held accountable for 65.32 

kilograms of cocaine; not seek a money judgment forfeiture; and recommend 

he receive the benefits of the safety valve provisions of 18 U.S.C. § 3553(f) and 

U.S.S.G. § 5C1.2, if eligible. In addition, the Government indicated it may file 

a motion for departure under U.S.S.G. § 5K1.1 as a result of Cluff’s 

cooperation. At the plea hearing, Cluff acknowledged that the terms of the 

plea agreement were correct, no other promises had been made to induce him 

to plead guilty, and he understood the terms of the plea agreement. 

The Presentence Investigation Report (PSR) assessed a base offense 

level of 38 upon finding that Cluff was responsible for 615 kilograms of cocaine. 

The probation officer also recommended a four-level enhancement based on 

Cluff’s role as an organizer or leader, which resulted in a total offense level of 

42. With an offense level of 42 and a criminal history category of I, his 

guideline range for imprisonment was 360 months to life. 

Cluff objected to the PSR to the extent it did not conform to the plea 

agreement. He objected to the amount of cocaine as well as the leadership 

enhancement and sought a reduction for acceptance of responsibility and 

application of the safety valve provision. The Government filed a response, 

recommending Cluff be given safety valve and that he be held accountable for 

only 65.32 kilograms of cocaine, as agreed in the plea agreement. The 

Government also contested the leadership enhancement. Subsequently, the 

Government filed a motion for sentence reduction pursuant to § 5K1.1 and 

recommended Cluff receive a three-level reduction for acceptance of 

responsibility, which would result in a recommended guideline range of 46 to 

57 months’ imprisonment. 

II. 

At the sentencing hearing on December 1, 2015, Cluff accepted 

responsibility for his actions. He then explained to the court that he became 

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an informant based on his understanding that he had entered into an 

agreement with the DEA agents that if he worked for the Government, he 

would not be charged at all. Assistant United States Attorney (AUSA) Ralph 

Imperato denied ever having made such a promise, explaining that Cluff was 

told he would go to prison, but the amount of time he would serve was 

dependent upon his level of cooperation. The district judge asked Cluff who 

had made him this alleged promise, to which he replied with “Mr. Imperato.” 

Again, AUSA Imperato denied Cluff’s statement, accused him of lying to the 

court, and asked the court to allow him to withdraw his guilty plea. Instead, 

the district court recessed the hearing to give the parties time to resolve the 

issue.

The day before the second sentencing hearing, the Government filed a 

modified motion for sentence reduction. The motion alleged that Cluff made 

false statements under oath at the December 1 hearing and, therefore, he did 

not accept responsibility as contemplated by the Sentencing Guidelines, as was 

required by the plea agreement. The Government then withdrew its previous 

recommendation concerning acceptance of responsibility and recommended he

be given a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.2 

However, given Cluff’s substantial assistance as an informant, the 

Government recommended a downward departure under § 5K1.1.

The parties reconvened before the court on December 22, 2015. Again, 

Cluff accepted responsibility. In addition, he stated that if he misconstrued or 

misunderstood the agreement, he wanted to apologize to AUSA Imperato. At 

the conclusion of the hearing, the district court sentenced him to 99 months of 

imprisonment followed by 5 years of supervised release. In so ruling, the court 

 

2 This changed his recommended guideline range from 46 to 57 months to 80 to 99 

months, which included the departure under § 5K1.1.

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declined to grant Cluff a reduction for acceptance of responsibility. Instead, 

the court imposed an additional two points for obstruction of justice but 

reduced his sentence by granting the Government’s motion for a § 5K1.1

departure.

Cluff then filed a timely motion for new trial, arguing the Government 

breached the plea agreement by recommending that the court deny acceptance 

of responsibility and impose a two-level increase for obstruction of justice. 

After a hearing, the district court denied Cluff’s motion for new trial, reasoning 

that he had made a materially false statement at the December 1, 2015 

hearing.3 Accordingly, the court found the Government was not obligated to 

recommend a downward adjustment for acceptance of responsibility and, thus, 

did not breach the plea agreement. 

III. 

As a preliminary matter, the Government argues this appeal should be 

dismissed as a result of the appellate waiver in the plea agreement. However, 

the appeal may proceed notwithstanding the waiver. See United States v. 

Purser, 747 F.3d 284, 289 (5th Cir. 2014) (stating a claim for breach of a plea 

agreement may be raised despite the waiver provision of the plea agreement); 

United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).

A district court’s ruling on a motion for new trial is reviewed for an abuse 

of discretion. United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011). A 

claim that the government breached the plea agreement is reviewed de novo 

unless the defendant failed to preserve his objection, in which case the claim 

is reviewed for plain error. United States v. Kirkland, 851 F.3d 499, 502–03 

 

3 Although Cluff had made the same assertions before the December 1, 2015 hearing, 

the district court determined that this was the first instance Cluff had made a “materially 

false statement to a judge that would trigger an obstruction of justice enhancement and 

require the withdrawal of the recommendation for acceptance of responsibility.”

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(5th Cir. 2017); Purser, 747 F.3d at 290; Puckett v. United States, 556 U.S. 129, 

131 (2009). 

Cluff did not object to the district court’s findings regarding acceptance 

of responsibility or obstruction of justice before the conclusion of the second 

sentencing hearing. Instead, he waited to raise the issues now on appeal in 

his motion for new trial, which was filed on December 29, 2015, seven days 

after the second sentencing hearing. Therefore, we find Cluff did not preserve 

his objections, triggering plain error review. In order to succeed under plain 

error, Cluff must show there was an error or defect that was clear or obvious 

and affected his substantial rights. United States v. Escalante-Reyes, 689 F.3d 

415, 419 (5th Cir. 2012) (en banc). 

Finally, we “accept[] the district court’s factual findings unless clearly 

erroneous.’” United States v. Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011) 

(quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)). 

IV. 

Cluff asserts the Government breached the plea agreement in two ways:

first, by withdrawing its recommendation that he be granted a downward 

adjustment for acceptance of responsibility; and second, by requesting a twolevel increase for obstruction of justice.

In interpreting terms of a plea agreement, courts are to apply general 

principles of contract law. United States v. Long, 722 F.3d 257, 262 (5th Cir. 

2013). “[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.” United States v. Saling, 205

F.3d 764, 767 (5th Cir. 2000) (internal quotations and citations omitted). To 

determine whether the terms of the plea agreement have been violated, the 

court must consider “whether the government’s conduct is consistent with the 

defendant’s reasonable understanding of the agreement.” Pizzolato, 655 F.3d 

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at 409 (internal quotations and citations omitted). The court should also 

consider both express and implied terms of the plea agreement. See United 

States v. Munoz, 408 F.3d 222, 227 (5th Cir. 2005).

Cluff’s plea agreement provided that “[a]t the time of sentencing, the 

United States agrees to recommend that the defendant receive a two (2) level 

downward adjustment pursuant to U.S.S.G. Section 3E1.1(a) should the 

defendant accept responsibility as contemplated by the Sentencing 

Guidelines.” The agreement also stated that “the United States reserves the 

right . . . to set forth or dispute sentencing factors or facts material to 

sentencing.”

Section 3E1.1 of the Sentencing Guidelines permits a two-level decrease 

in a defendant’s sentence so long as he clearly demonstrates acceptance of 

responsibility. The Guidelines also authorize a court to increase the offense 

level by two levels for obstructing justice if: 

(1) the defendant willfully obstructed or impeded, or 

attempted to obstruct or impede, the administration of 

justice with respect to the investigation, prosecution, or 

sentencing of the instant offense of conviction, and (2) the 

obstructive conduct related to . . . the defendant’s offense of 

conviction and any relevant conduct. 

U.S.S.G. § 3C1.1. The commentary provides a non-exhaustive list of examples 

of conduct covered by the enhancement, including “providing materially false 

information to a judge or magistrate judge.” U.S.S.G. § 3C1.1, comment. 

(n.4(F)). The Guidelines defines material as “evidence, fact, statement, or 

information that, if believed, would tend to influence or affect the issue under 

determination.” U.S.S.G. § 3C1.1, comment. (n.6). The commentary of § 3E1.1 

then states that “[c]onduct resulting in an enhancement under § 3C1.1 

(Obstructing or Impeding the Administration of Justice) ordinarily indicates 

that the defendant has not accepted responsibility for his criminal conduct.” 

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U.S.S.G. § 3E1.1, comment. (n.4). In other words, “[a]n obstruction of justice 

charge almost always necessarily militates against an acceptance of 

responsibility recommendation by the government and a sentence reduction by 

the district court.” United States v. Quintero, 618 F.3d 746, 751–52 (7th Cir. 

2010). For the reasons discussed below, both of Cluff’s theories concerning the 

Government’s alleged breach fail. 

A. 

We first address Cluff’s claim that the Government breached the plea 

agreement by withdrawing its recommendation that he receive acceptance of 

responsibility credit. Cluff acknowledges that per the plea agreement, the 

Government only agreed to recommend a downward adjustment for acceptance 

of responsibility if he “accept[ed] responsibility as contemplated by the 

Sentencing Guidelines.” We have previously held that the Government does 

not breach a plea agreement by withdrawing a recommendation for, or failing 

to recommend, acceptance of responsibility credit where the agreement, such 

as the one at issue here, conditions the Government’s obligation to recommend 

acceptance credit on the defendant “accepting responsibility as contemplated 

by the Sentencing Guidelines,” and the defendant fails to do so. 

In United States v. Mejia, No. 93-2611, 24 F.3d 239 (5th Cir. 1994) (per 

curiam) (table), 1994 WL 243287, at *1,4 we held that the Government did not 

breach the plea agreement by failing to recommend a three-point reduction for 

acceptance of responsibility because the defendant “minimiz[ed] his role in the 

offense during his interview with the probation officer.” Thus, the condition 

necessary to trigger the Government’s obligation to recommend the reduction 

promised in the plea agreement had not been satisfied. 

 

4 See also 5th Cir. R. 47.5.3 (unpublished opinion before 1996 is precedential).

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In addition to the fact that Mejia is our binding precedent, our court has 

issued several unpublished opinions reaching the same conclusion. We find 

these cases both instructive and persuasive. In United States v. HernandezGarcia, 442 F. App’x 136, 137 (5th Cir. 2011) (per curiam), the district court 

found the defendant had not given truthful testimony at the sentencing 

hearing and had, therefore, obstructed justice. As a result, he was not entitled 

to a reduction of his sentence for acceptance of responsibility. We agreed, 

reasoning that “[b]ecause Hernandez did not accept responsibility under the 

Guidelines, the condition triggering the Government’s obligation not to oppose 

Hernandez’ request for an adjustment was not fulfilled; the Government was, 

therefore, not in breach of the agreement by opposing his request for an 

acceptance-of-responsibility adjustment.” Id. (emphasis omitted); cf. United 

States v. Bell, 417 F. App’x 420, 422 (5th Cir. 2011) (per curiam) (holding the 

same where the defendant “offered exculpatory and irrelevant interpretations 

of transactions and events; deflected responsibility; denied or discounted 

relevant conduct; portrayed himself as a victim of unfair Government 

treatment; and generally denied or minimized his culpability” at the 

sentencing hearing). A contrary unpublished opinion, United States v. 

Antunez, 269 F. App’x 528 (5th Cir. 2008) (per curiam), finding breach of the 

plea agreement, is error in light of Mejia.

Here, the district court found Cluff obstructed justice by making a 

materially false statement to the court “when he claimed the Government 

informed him he would not be prosecuted.” As a result the court determined 

the Government had not breached the plea agreement because Cluff had not 

accepted responsibility as contemplated by the Guidelines. Whether Cluff 

made a materially false statement to the judge is a fact issue and, unless 

clearly erroneous, we defer to the district court. Pizzolato, 655 F.3d at 409. 

Given the fact-intensive nature of this inquiry, the district court was in a better 

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position to make that determination, which was not clearly erroneous. 

Accordingly, we defer to the district court’s determination that Cluff made a 

materially false statement. In light of Cluff’s statement, the condition 

necessary to obligate the Government to recommend acceptance was never 

triggered. Thus the Government did not breach the plea agreement by 

recommending that the district court deny acceptance of responsibility credit 

to Cluff. 

B. 

We now turn to Cluff’s assertion that the Government breached the plea 

agreement by moving to increase his sentence by two levels for obstructing 

justice. Cluff argues the condition in the plea agreement created an implicit 

promise not to argue for an enhancement. He directs the court to United States 

v. Munoz, 408 F.3d 222 (5th Cir. 2005). In Munoz, we found there was an 

implied promise that the Government would not argue for any enhancement 

not included in the plea agreement. The Government breached the plea 

agreement by advocating for an enhancement for an abuse of trust after the 

parties agreed to a specific guideline calculation, which did not include that 

particular enhancement. Id. at 227. We held that “[e]ven though the 

Government reserved the right to ‘dispute sentencing factors or facts material 

to sentencing,’ the Government implicitly promised not to argue for an 

enhancement that was not part of the plea agreement.” Id. 

However, Cluff’s case is distinguishable from Munoz. The controlling 

factor in Munoz was that the parties stipulated to the total offense level. The 

agreement also set forth a specific guideline calculation that included a list of 

adjustments and enhancement that would apply to the defendant’s sentence, 

and that list did not include the enhancement the Government attempted to 

proffer at sentencing. There were no such provisions in Cluff’s plea 

agreement—the agreement did not stipulate to a total offense level or include 

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a list of potential enhancements. The agreement here merely provided that 

the Government would recommend credit for acceptance if Cluff accepted 

responsibility as contemplated by the Guidelines, and he failed to do so. Thus, 

his reliance on Munoz is improper. See Purser, 747 F.3d at 294 (finding that, 

unlike Munoz, there was no provision in the plea agreement regarding a total 

offense level and therefore, there was “no implicit commitment on part of the 

government as to any Guidelines provisions not mentioned in the plea 

agreement”). 

Cluff’s agreement also stipulated that the Government retained the right 

“to set forth or dispute sentencing factors or facts material to sentencing.” This 

provision is broad enough to cover enhancements such as the one at issue here 

regarding obstruction of justice. The same provision was included in the plea 

agreement in Munoz, but the Government was precluded from relying on it 

given that the parties stipulated to the total offense level. Because Cluff’s 

agreement did not stipulate to a total offense level, the Government was 

entitled to dispute facts material to sentencing and recommend enhancements 

not specifically mentioned in the plea agreement. 

Under the circumstances presented here, it was not improper to deny a 

reduction for acceptance of responsibility and impose an increase for 

obstruction of justice. See United States v. Rodriguez, 942 F.2d 899, 902–03 

(5th Cir. 1991) (upholding the district court’s denial of acceptance of 

responsibility and imposition of an obstruction of justice enhancement). The 

language of Cluff’s plea agreement was clear. The Government was only 

obligated to recommend a reduction for acceptance of responsibility if Cluff 

accepted responsibility as contemplated by the Guidelines. He failed to do so. 

As a result, the Government was not required to recommend acceptance credit 

and did not breach the plea agreement by advocating against such a reduction. 

In addition, the agreement provided that the Government retained the right to 

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bring up other sentencing factors or facts material to sentencing. There was 

nothing in the agreement that prevented the Government from raising the 

obstruction enhancement. While there are “extraordinary cases in which 

adjustments under both §§ 3C1.1 and 3E1.1 may apply,” this is not one of those

cases. U.S.S.G. § 3E1.1, comment. (n.4). Accordingly, we conclude the 

Government did not breach the plea agreement. 

V. 

Next, Cluff argues judicial estoppel should have prevented the 

Government from advocating for the obstruction of justice enhancement and 

that its actions constituted prosecutorial vindictiveness. Given that neither 

issue was raised in the district court, we review for plain error. United States 

v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010). 

A. 

We first address his claim that the Government was judicially estopped 

from arguing for an obstruction enhancement. Judicial estoppel is a doctrine 

that “‘prevents a party from asserting a position in a legal proceeding that is 

contrary to a position previously taken in the same or some earlier 

proceeding.’” Gabarick v. Laurin Mar. (Am.) Inc., 753 F.3d 550, 553 (5th Cir. 

2014) (quoting Ergo Sci., Inc. v. Martin, 73 F.3d 595, 598 (5th Cir. 1996)). At 

the outset, judicial estoppel “has apparently never been applied against the 

government in a criminal case.” Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir. 

1995). However, we have previously assumed without deciding that judicial 

estoppel can apply to the government in criminal cases. United States v. 

McCaskey, 9 F.3d 368, 378–79 (5th Cir. 1993) (per curiam). Assuming that the 

doctrine can apply to the government, to succeed Cluff must first establish that 

“the position of the party to be estopped is clearly inconsistent with its previous 

one; and [second,] that party must have convinced the court to accept that 

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previous position.” Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 398 (5th 

Cir. 2003) (quotation omitted). 

According to Cluff, the Government threatened it would not file a § 5K1.1 

motion and would withhold a recommendation for acceptance of responsibility 

if he filed the motion to dismiss the indictment. Cluff disregarded the threat

and filed the motion to dismiss. Despite its threat, the Government filed 

objections to the PSR that were consistent with the plea agreement, 

recommended he receive a downward adjustment for acceptance of 

responsibility, and filed the § 5K1.1 motion. It was not until Cluff’s statements 

at the December 1, 2015 sentencing hearing that the Government changed 

positions by filing a modified motion for sentence reduction seeking to 

withdraw its recommendation for a reduction for acceptance of responsibility 

and recommending an enhancement for obstruction of justice. 

Cluff is correct in his assertion that the position taken by the 

Government before the December 1, 2015 hearing was inconsistent with its 

position after the hearing. Yet, he has not shown that the Government 

convinced the district court to accept the previous position. Cluff relies on the 

district judge’s statement during the December 22, 2015 hearing stating, “I . . . 

hereby decide and, to whatever extent necessary, reverse the prior ruling 

relative to acceptance,” to show that the court accepted the previous position 

and intended to reverse it. However, an examination of the record shows the 

court did not make any rulings during the December 1 hearing. Instead, the 

district judge recessed the hearing and reset it for December 22 to give the 

parties time to resolve the discrepancy. The acceptance of responsibility and 

obstruction of justice issues were not decided until the December 22 hearing. 

Thus, the Government was not estopped from recommending that the court 

deny a reduction for acceptance of responsibility and to instead apply a twolevel increase for obstructing justice. 

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B. 

As for Cluff’s prosecutorial vindictiveness claim, he acknowledges that 

vindictiveness does not typically arise unless “a defendant receives a harsher 

sentence after winning an appeal or habeas petition,” and that he has not 

received a second sentence. Nevertheless, Cluff takes issue with the various 

positions articulated by the Government from the time of his plea to sentencing 

and argues these actions demonstrated vindictiveness.5 

A defendant can prove vindictiveness in one of two ways: first, he can 

present objective evidence to show that the prosecutor’s actions were designed 

to punish him for asserting a legal right; and second, he may be able to show 

sufficient facts that give rise to a presumption of vindictiveness. United States 

v. Saltzman, 537 F.3d 353, 359 (5th Cir. 2008). A presumption of 

vindictiveness only arises “where there exists a realistic likelihood of 

vindictiveness.” Id. (internal quotations omitted). The presumption does not 

arise if, after examining the prosecutor’s actions in the context of the entire 

proceeding, “any objective event or combination of events in those proceedings 

should indicate to a reasonable minded defendant that the prosecutor’s 

decision . . . was motivated by some purpose other than a vindictive desire to 

deter or punish appeals.” United States v. Wells, 262 F.3d 455, 466–67 (5th 

Cir. 2001) (internal citation and quotation omitted). “Where there is no such 

reasonable likelihood, the burden remains upon the defendant to prove actual 

vindictiveness.” Alabama v. Smith, 490 U.S. 794, 799 (1989). 

There is no indication the Government’s actions were designed to punish 

Cluff. First, he was not asserting a legal right. Second, the terms of the plea 

 

5 These various positions included the threats made regarding the motion to dismiss, 

which despite the filing of the motion to dismiss, were not carried out until sentencing, and 

the objections to the PSR, to the extent it did not conform to the plea agreement. 

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agreement provided that the Government would recommend a reduction for 

acceptance of responsibility only if Cluff accepted responsibility as 

contemplated by the Guidelines. Once Cluff stated at the December 1 hearing, 

under oath, that he did not believe he would be charged at all as a result of his 

cooperation, it was the Government’s belief that he had made a materially false 

statement to the court, which entitled the Government to recommend against 

acceptance of responsibility. Notably, the Government still recommended he 

receive a reduction in his sentence pursuant to § 5K1.1, further evincing it did 

not intend to punish him improperly. Accordingly, the record does not support 

Cluff’s claim of prosecutorial vindictiveness. 

VI. 

For the foregoing reasons, we hold that the district court did not err in 

denying Cluff’s motion for new trial. The district court’s judgment is, therefore,

AFFIRMED. 

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