IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20577

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JERAMY JEROME GAGE,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CR-336-1

Before SMITH, BARKSDALE, AND HAYNES, Circuit Judges.

PER CURIAM:*

Jeramy Jerome Gage pleaded guilty, pursuant to a written plea 

agreement, to conspiring to possess, with intent to distribute, five kilograms or 

more of cocaine and less than 50 kilograms of marijuana, in violation of 21 

U.S.C. §§ 841 and 846. The court sentenced him at the bottom of the applicable 

advisory Guidelines sentencing range to, inter alia, 292 months’ imprisonment. 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 22, 2016

Lyle W. Cayce

Clerk

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No. 15-20577

2

Gage challenges his sentence, contending the Government breached the plea 

agreement in two ways.

The plea agreement included a waiver of Gage’s right to appeal his 

sentence; but, obviously, the waiver is unenforceable if the Government 

breached the agreement. See United States v. Keresztury, 293 F.3d 750, 756–

57 (5th Cir. 2002). Although the parties disagree on the applicable standard 

of review, we need not resolve that issue because Gage cannot make the 

requisite showing under either a plain-error or de novo standard. See United 

States v. Le, 512 F.3d 128, 132 (5th Cir. 2007).

Gage contends the Government agreed to recommend to the sentencing 

court: a 188-month sentence; and a three-point reduction for acceptance of 

responsibility. “[W]hen a guilty plea rests in any significant degree on a 

promise or agreement of the [Government], so that it can be said to be part of 

the inducement or consideration, such promise must be fulfilled”. United 

States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993) (internal quotation marks 

omitted). The proper inquiry is whether the Government’s conduct comports 

with Gage’s reasonable understanding of the agreement. United States v. 

Roberts, 624 F.3d 241, 245–46 (5th Cir. 2010). Gage “bears the burden of 

demonstrating a breach of the agreement by a preponderance of the evidence”. 

United States v. Loza-Gracia, 670 F.3d 639, 642 (5th Cir. 2012).

Regarding the length of sentence, Gage maintains the Government 

undermined that agreement during the sentencing hearing, and “essentially 

apologiz[ed]” for its leniency. Nevertheless, the record reflects the Government

offered an explanation for that recommendation, which was also set forth in 

the plea agreement, but did not disavow, or apologize for, it. The Government 

is not generally required to advocate enthusiastically for a particular 

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No. 15-20577

3

sentencing recommendation, even where it has promised to make it. See 

United States v. Benchimol, 471 U.S. 453, 455–57 (1985). 

Additionally, the Government did not agree to recommend a three-point 

reduction for acceptance of responsibility; instead, it agreed not to oppose 

Gage’s anticipated request for such a reduction. A review of the sentencing 

transcript shows the Government complied with that agreement; it stated 

Gage had done enough to receive credit for acceptance of responsibility. 

In sum, Gage has not met his burden of establishing the requisite breach. 

See, e.g., United States v. Long, 722 F.3d 257, 262 (5th Cir. 2013).

AFFIRMED.

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