[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_________ _______________ No. 15

- 13728 Non

- Argument Calendar

________________________ D.C. Docket No. 1:14

- cr - 00510

- KKD

- CSC

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

versus
SONYA MICHELLE PITTMAN , Defendant

- Appellant

.

________________________ Appeal from the United States District Court for the Middle District of Alabama

________________________ ( September 20, 2017 ) Case: 15-13728 Date Filed: 09/20/2017 Page: 1 of 112 Before TJOFLAT , WILLIAM PRYOR , and ROSENBAUM , Circ uit Judges

. PER CURIAM: Sonya Michelle Pittman appeals her 20

- year sentence, imposed after pleading guilty to one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). On appeal, she argues
that the district court plainly erred when it failed to find that the government breached her plea agreem ent by not filing a substantial

- assistance motion under 18 U.S.C. § 3553(e). Alternatively, Pittman assert s that the district court plainly erred by failing to require the go vernment to definitively state that it was exercising its
discr etion to not file a substantial

- assistance motion in her case. For the reasons that follow, we affirm.
I. In 2014, a grand jury returned a four

- count indictment against Pittman, charging her with (1) distribution of methamphetamine (Count 1), in violation of 21 U.S.C. § 841(a)(1); (2) possession with the intent to distribute methamphetamine (Count 2), 21 U.S.C. § 841(a)(1); (3) possession of a firearm in furtherance of a drug trafficking crim e (Count 3), 18 U.S.C. § 924(c)(1)(A)(i); and (4) being a felon in possession of a firearm (Count 4), 18 U.S.C. § 922(g)(1). The government filed a Notice of Information pursuant to 21 U.S.C. § 851, indicating its intent to use Pittman ’ s prior felony

- drug conviction as a basis for

Case: 15-13728 Date Filed: 09/20/2017 Page: 2 of 113 seeking increased punishment for the drug offense charged in C ounts 1 and 2

. It attached a criminal judgment stating that in 2006 Pittman was convicted of conspiracy to distribute and possess with intent to distribute methampheta mine, in violation of 2l U.S.C. § 841(a)(1) and 846. Pittman and the government entered into a plea agreement in which Pittm an agreed to plead guilty to Count 2. The parties filed a sealed addendum to the plea agreement that memorialized and contained P ittman’ s cooperation a greement with the government. The plea agreement addendum stated, in relevant part, Should Defendant complete the obligations contained within the Cooperation Agreement as set forth herein, the Government will move at sentencing for a downward departure pursuant to U.S.S.G. § 5K1 .1 and Title 18, United States Code, Section 3 553(e) , to reflect Defendant's substantial assistance. Determination of whether Defendant has met the obligations to qualify for a reduction pursuant to U.S.S.G. § 5K1. 1 and Title 18, United States Code, Section 3553(e), is at the sole discretion of the United States. The addendum recognized that Pittman had been interviewed by law enforcement “in an attempt to provide substantial as sistance.” A s set forth in the addendum, the

c ooperation a greement stipulated that Pittman was required to

c ooperate fully and testify truthfully against any and all persons as to whom Defendant may have knowledge at the grand jury, trial, or whenever cal led upon to do so. Defendant understands that this agreement requires Defendant to be truthful and to testify truthfully whenever called upon. Defendant agrees to be available for the review of documents and other materials and for interviews by law enforc ement officers and attorneys for the Government upon reasonable request and to fully and truthfully respond to all questions Case: 15-13728 Date Filed: 09/20/2017 Page: 3 of 114 asked of Defendant by law enforcement officers and attorneys for the Government. [Defendant was also required to] f ully and truthfu lly disclose to the Government everything Defendant knows about any and all documents and materials in Defendant's possession that relate to the violations charged in the Indictment and any other criminal violations in the Middle District of Alabama and el sewhere. Defendant agrees to submit to a polygraph examination conducted by the Government if requested to do so.
A nd the a greement expressly warned that if Pittman “ failed or should fail in any way to fulfill completely [her] ob ligations under this agreement, then the
G overnment w ill be released from its commitment to honor all of its obligations to [Pittman], without [her] being allowed to withdraw the guilty plea.” Neither the addendum nor the cooperation a greement within it stipulated that the go vernment would be required to make a determination on the record as to whether Pittman fulfilled her required obligations. Pittman and her attorney both signed under an acknowledgement that they had re ad and understood the addendum. Pittman pled guilty to Count 2 at a change

- of

- plea hearing before the magistrate judge. During the plea colloquy, Pittman confirmed that she had fully read the plea agreement, discussed it with her attorney, and understood its terms. The magistrate judge explained that the ma ximum p unishment ranged from ten years’ imprisonment to life , but because Pittman had a prior felony

- drug conviction, the term of imprisonment increased to a minimum mandatory period of
20 years. Case: 15-13728 Date Filed: 09/20/2017 Page: 4 of 115 In the Presentence Investigation Report (“PSR” ), the probation officer calculated that Pittman had a total offense level of 34 and a criminal history category of VI because two prior drug c onvictions (one state and one local) quali fied her as a career offender. Based on these findings, Pittman’ s advisory
gu ideline s range was 26 2 to 327 months’ imprisonment. The statutory minimum term of imprisonment was 20 years, with a maximum of life. Pittman filed a senten cing memorandum, asser ting that, while she understood that she had been designated a “ career offen der, ” her criminal history

was “ overstated ” and warranted a downward variance. She requested that the district court impose a sentence of no more than 60 months. In response, t he district court directed P ittman to file an addendum to her sentencing memorandum citing authority for her requested variance , given the 240

- month mandatory minimum sentence in her case. Pittman filed a response in which she argued that “ at the time her Sentencing Memorandum was filed she was hopeful and expectant that the g overnment was going to file a motion for a downward departure pursuant to U .S.S.G. Section 5K1 .1 for substantial assistance. ” In support of her position, Pittman contended that she had cooperated with law enforcement, providing information and assistance that she believed qualified for such a motion.

Case: 15-13728 Date Filed: 09/20/2017 Page: 5 of 116 At sentencing , Pittman withdrew a previously made objection to a firearm enhancement in her criminal history and stated that she had no other objections to the calculation of her advisory guideline s range. When the district court asked if

“ there was anything el se [she] would like to present,” Pittman declined. Throughout the sentencing, neither Pittman nor the government even mentioned any alleged cooperation or substantial assistance on Pittman’ s part, and the district court did not ask about it. The district court sentenced Pittman to 20 years ’ imprisonment, stating, Well, I have considered the guidelines in this case. But the mandatory minimum is 20 years, and that’ s what I ’ m going to impose. I would st ate for the record that if I had discretion, I would not impose that. I feel that that is extremely too high, even though she does have a significant criminal history and has repeatedly engaged in distribution of meth, which is a scourge to our community. I do feel the 20 years is unreasonable in this situation. Pittman raised no objections to the sentence as pronounced.
II. Though the subject of cooperation and substantial assistance was never raised by anyone at Pittman’s sentencing, Pittman now asserts that the government breached her plea agreement in two ways. First, she argues that the government breached the terms of her plea agreement when it did not move at sentencing for a downward departure. And second, she complains that the government never

Case: 15-13728 Date Filed: 09/20/2017 Page: 6 of 117 indicated at sentencing that it had determined whether Pittman had fulfilled her obligations under the cooperation agreement, as required by the agreement. Generally, w e review de novo whether the government has breached a plea agreement. United St ates v. De La Garza , 516 F.3d 1266, 1269 (11th Cir. 2008). But where, as here, a defendant failed to raise the issues before the district court, we review for plain error. Id.
To establish plain error, the defendant bears the burden to show (1) an error (2) that is plain and (3) that affected h er substantial rights

. United States v. Madden , 733 F.3d 1314, 1322 (11th Cir. 2013). If the defendant satisfies her burden, we may exercise our discretion to correct the error if it (4) se riously affects th e fairness, integrity, or public reputation of judicial proceedings. Id

. Because we find that Pittman cannot meet the first prong , we need not examine the rest

. The first prong requires a showing of some “defect

— some sort of deviation from the legal rule

— that has not been intentionally relinquished or abandoned, i.e ., affirmatively waived, by the appellant.” Puckett v. United States , 556 U.S. 129, 135 (2009). An error is not plain unless it is contrary to an explicit statutory provisi on or on - point precedent from our Circuit or the United States Supreme
Court

. United States v. Hoffman , 710 F.3d 1228, 1232 (11th Cir. 2013) ; Puckett , 556 U.S. at 135 (“ the legal error must be clear or obvious, rather than subject to reasonable dispute.”).

Case: 15-13728 Date Filed: 09/20/2017 Page: 7 of 118 A plea agre ement is essentially a contract between the g over nment and a criminal defendant. United States v. Howle , 166 F.3d 1166, 1168 (11th Cir. 1999). As a result, when determining whether the government breached a plea agreement,

we consider whether the government acted inconsistently with what the defendant reasonably understood the government to have promised when the plea deal was
made

. See U nited States v. Sosa , 782 F .3d 630, 637 (11th Cir. 2015). Material promises underlying a plea agre ement are binding on the government. Id. We examine a plea agreement in two steps. United States v. Copeland , 381 F.3d 1101, 1105 (11th Cir. 2004). First, we determine whether the language of the plea agreement is ambiguous. Id. at 1106. Ambiguities in a plea agreement should be read against the government. Id. at 1105

- 06. But i f the language is clear, we consider only “ the unambiguous meaning of the language in the agreement.” Id. at 1106. That being said, we do not accept a “hyper

- technical reading of the written agreement” or “a rigidly literal approach in the construction of the language.” Id.
at 1105. Instead, w e read plea agreements as a whole. United States v. Rubbo , 396 F.3d 1330, 1335 (11th Cir. 2005) (rejecting a defenda nt’s interpretation of a term in their plea agreement as inconsistent with other provisions of the agreement). Second, depending on our interpretation of the agreement’s language, we decide whether to enforce the agreement. Copeland , 381 F.3d at 1106. If the government has breached the plea agreement, we may remedy the breach by

Case: 15-13728 Date Filed: 09/20/2017 Page: 8 of 119 ordering specific performance of the agreement. United States v. Symington , 781 F.3d 1308, 1313 (11th Cir. 2015).
Here , Pittman has failed to show any error has occurred. With respect to Pittman’s argument that the government breached the plea agreement by failing to file a motion for downward departure, t he language in the plea agreement and

a ddendum is unambiguous. Un der the a ddendum , the government retained “ sole discretion ” to determine whether Pittman met her obligations under the plea agreement ’s terms

. W e agree with Pittman that the language in the addendum that the government “will move at sentencing for a downward departure” required the government to move for downward departure if Pittman completed the obligations set forth in the cooperation agreement. But significantly, the language also provides that the government is the sole arbiter of whether Pittma n has completed her obligations under the cooperation agreement. Section 3553(e) specifically provides that a sentencing court may impose a sentence below the statutory minimum only “[u]pon motion of the Government.” 18 U.S.C. § 3553(e). And we have sta ted that a government’s decision not to file a § 3553(e) motion is unreviewable, absent an allegation that the government based its decision upon an unconstitutional motion, such as race. United States v. Forney , 9 F.3d 1492, 1501 (11th Cir. 1993). Pittm an has made no such argument, and we cannot review the government’s decision.

Case: 15-13728 Date Filed: 09/20/2017 Page: 9 of 1110 Pittman’s second argument is that the government failed to satisfy its duty to determine whether Pittman had fulfilled her obligations under the cooperation agreement . But e ven if we were to assume error in the district court’s failure to require the government to state on the record whether it had determined whether Pittman fulfilled her responsibilities under the cooperation agreement, 1 we could find no plain error. Pittman ha s not point ed to any controlling case law that require d the government to express orally or in writing that it had exercised its discretionary authority to determine that she had not fulfilled her obligations. Rather, Pittman urges this Court to adopt the reasoning from the Sixth Circuit in United States v. Lukse , 286 F.3d 906 (6th Cir. 2002), which found that the government had not met its burden to show that the defendants had breached their plea agreements. First, that case is not controlling, so it cannot establish plain error. Hoffman , 710 F.3d at 1232. But second, Lukse is distinguishable, regardless, on the facts. In Lukse , the government admitted that the defendants had provided some substantial
assis tance and yet openly claimed that it had not made a determination regarding whether the defendants had satisfied their duties with respect to certain parts of the plea agreement. Luske , 286 F.3d at 911, 913. Thus, the Sixth Circuit ruled that

“ government failed to meet its burden of proving the Appellants' breaches before

1 We make no finding one way or the other because we need not do so. Case: 15-13728 Date Filed: 09/20/2017 Page: 10 of 1111 declining to honor the obligations set forth in the plea agreements .” Id. at 913. This is not the case here. Furthermore, the Sixth Circuit acknowledged that “[i]mportantly, neither w e, nor any of our sister Circuits have required formal findings by the government on their assessment of whether substantial assistance has been rendered .” Id. at 912. For these reasons, Pittman has not established plain error with respect to her second argument. III.
W e affirm Pittman’s sentence. AFFIRMED. Case: 15-13728 Date Filed: 09/20/2017 Page: 11 of 11