[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 21-13194

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

MAURICE FAYNE, 

a.k.a. Arkansas Mo,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cr-00228-MHC-JKL-1

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2 Opinion of the Court 21-13194

Before LUCK, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

Maurice Fayne appeals from his 210-month sentence imposed after he pled guilty pursuant to a plea agreement that required the government to recommend a 151-month sentence. 

Fayne argues that the government breached the plea agreement at 

sentencing when it emphasized his criminal history and the details 

of his offense and failed to meaningfully argue for the sentence that 

it agreed to recommend. 

Whether the government breached a plea agreement is a 

question of law that we generally review de novo. United States v. 

Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). But where the defendant failed to raise the issue before the district court, we apply 

plain error review. United States v. De La Garza, 516 F.3d 1266, 

1269 (11th Cir. 2008). “To establish plain error, a defendant must 

show there is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th 

Cir. 2005). If all three factors are established, we may exercise our

discretion to correct the error if it “seriously affects the fairness, 

integrity[,] or public reputation of judicial proceedings.” RosalesMireles v. United States, 138 S. Ct. 1897, 1905 (2018). 

An error is plain if it is clearly contrary to settled law. United 

States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005). For an error 

to affect substantial rights, it must have been prejudicial, meaning 

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21-13194 Opinion of the Court 3

that “[i]t must have affected the outcome of the district court proceedings.” De La Garza, 516 F.3d at 1269 (quoting United States v. 

Olano, 507 U.S. 725, 734 (1993)). The defendant has the burden of 

persuasion as to prejudice. United States v. Rodriguez, 398 F.3d 

1291, 1299 (11th Cir. 2005); Shelton, 400 F.3d at 1331–32. If it is 

unclear whether the government’s breach of a plea agreement affected the defendant’s sentence, the defendant cannot show plain 

error. See De La Garza, 516 F.3d at 1270–71. 

A plea agreement is analyzed according to the defendant’s 

reasonable understanding in executing the agreement. United 

States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). To determine 

whether the government breached a plea agreement, the court 

must determine the scope of the government’s promises. United 

States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). The government is bound to any material promise that induces the defendant to plead guilty. United States v. Hunter, 835 F.3d 1320, 

1324 (11th Cir. 2016). Nevertheless, implied obligations not agreed 

to by the parties will not be inferred. See United States v. 

Benchimol, 471 U.S. 453, 455 (1985) (“[O]ur view of [Federal Rule 

of Civil Procedure] 11(e) is that it speaks in terms of what the parties in fact agree to, and does not suggest that . . . implied-in-law 

terms [be] read into [a plea] agreement.”). There is generally no 

limitation about what information a district court may receive for 

sentencing purposes concerning the background, character, and 

conduct of a person convicted of a federal offense. 18 U.S.C. § 3661. 

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For example, in United States v. Levy, we held that the government did not breach a plea agreement that required it to recommend concurrent sentences when it made “grudging and apologetic” references to the agreement, asserted that its hands were 

“tied,” and that its sentencing recommendation was given “with a 

heavy heart.” 374 F.3d 1023, 1030–32 (11th Cir. 2004), vacated and 

remanded on other grounds, 545 U.S. 1101 (2005) (vacating and remanding because of the intervening decision in United States v. 

Booker, 543 U.S. 220 (2005)). We concluded that because nothing 

in the agreement prevented the government from providing information about Levy’s offenses, it had fulfilled its obligation to recommend a particular sentence. Id. at 1030. 

Similarly, in United States v. Carranza, we held that the government did not breach its promise in the plea agreement to not 

recommend a sentence when it argued against defense counsel’s 

recommendation of twenty years’ imprisonment on the ground 

that Carranza was the “kingpin” in the criminal enterprise. 921 

F.2d 1557, 1569 (11th Cir. 1991). We found that the government’s 

characterization of Carranza was relevant conduct for sentencing 

purposes, the plea agreement reserved the government’s right to 

inform the court “of all facts relevant to the sentencing process,” 

and the government never agreed that it would refrain from characterizing Carranza as a kingpin. Id. 

In contrast, in United States v. Johnson, we held that the 

government breached a plea agreement that bound it to represent 

that “an amount of marijuana not greater than 100 pounds should 

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be attributed to this defendant.” 132 F.3d 628, 630 (11th Cir. 1998). 

The Presentence Investigation Report, however, recommended 

that Johnson be held accountable for 1,400 pounds of marijuana. 

Id. When the district court inquired into the difference in amounts, 

the government explained that a co-conspirator had not been interviewed until the day after the plea agreement was made and that 

the co-conspirator’s credible testimony “substantially and drastically” changed the amount of marijuana involved. Id. We determined that the government violated the plea agreement when it 

failed to represent that Johnson was responsible for only 100 

pounds of marijuana and instead “became an enthusiastic advocate 

for a ‘fact’ at odds with the ‘fact’ to which [it] had stipulated.” Id. 

at 631. 

Here, even if the alleged error was plain, Fayne cannot show 

that the district court erred by not finding that the government 

breached the plea agreement. The government’s remarks about 

Fayne’s criminal history and the details of his offense were made 

pursuant to a reservation of rights in the plea agreement, and the 

plea agreement did not preclude the government from arguing 

against Fayne’s request for a 120-month sentence. Regardless of 

whether the government grudgingly honored its recommendation 

after learning about Fayne’s criminal history, it nevertheless fulfilled its obligations under the plea agreement when it opened and 

closed its sentencing argument by reiterating that it stood by its

recommendation. 

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Further, assuming arguendo that Fayne could establish error, he cannot meet his burden of showing that it affected his substantial rights. Based on the district court’s statements at sentencing, it is unclear, at best, whether the government’s alleged breach 

of the plea agreement affected Fayne’s sentence and, thus, he cannot show that any error prejudiced him. 

Accordingly, we affirm.

AFFIRMED. 

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