Plea Agreement — U.S. v. Maurice Fayne (Dkt. 293, N.D. Ga. No. 1:20-cr-00228, GAND 278523)

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[DO NOT PUBLISH] 
In the 
United States Court of Appeals 
For the Eleventh Circuit 
 
____________________ 
No. 21-13194 
Non-Argument Calendar
 
____________________ 
 
UNITED STATES OF AMERICA,  
 Plaintiff-Appellee, 
versus 
MAURICE FAYNE,  
a.k.a. Arkansas Mo, 
 
 Defendant-Appellant. 
____________________ 
Appeal from the United States District Court 
for the Northern District of Georgia 
D.C. Docket No. 1:20-cr-00228-MHC-JKL-1 
____________________ 
USCA11 Case: 21-13194     Date Filed: 07/25/2022     Page: 1 of 6 

2 
Opinion of the Court 
21-13194 
 
Before LUCK, LAGOA, and ANDERSON, Circuit Judges. 
PER CURIAM: 
Maurice Fayne appeals from his 210-month sentence im-
posed after he pled guilty pursuant to a plea agreement that re-
quired 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 de-
fendant 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 substan-
tial 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.”  Rosales-
Mireles 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 pro-
ceedings.”  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 af-
fected 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 gov-
ernment is bound to any material promise that induces the defend-
ant 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 par-
ties 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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4 
Opinion of the Court 
21-13194 
For example, in United States v. Levy, we held that the gov-
ernment did not breach a plea agreement that required it to recom-
mend concurrent sentences when it made “grudging and apolo-
getic” 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 re-
manding 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 infor-
mation about Levy’s offenses, it had fulfilled its obligation to rec-
ommend a particular sentence.  Id. at 1030.   
Similarly, in United States v. Carranza, we held that the gov-
ernment 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 char-
acterizing 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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21-13194  
Opinion of the Court 
5 
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 inter-
viewed until the day after the plea agreement was made and that 
the co-conspirator’s credible testimony “substantially and drasti-
cally” changed the amount of marijuana involved.  Id.  We deter-
mined 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 ful-
filled 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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6 
Opinion of the Court 
21-13194 
 
Further, assuming arguendo that Fayne could establish er-
ror, he cannot meet his burden of showing that it affected his sub-
stantial rights.  Based on the district court’s statements at sentenc-
ing, it is unclear, at best, whether the government’s alleged breach 
of the plea agreement affected Fayne’s sentence and, thus, he can-
not show that any error prejudiced him.   
 
Accordingly, we affirm. 
 
AFFIRMED.  
USCA11 Case: 21-13194     Date Filed: 07/25/2022     Page: 6 of 6 

UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT 
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 
56 Forsyth Street, N.W. 
Atlanta, Georgia 30303 
David J. Smith 
Clerk of Court  
 
 
July 25, 2022  
For rules and forms visit
www.ca11.uscourts.gov
 
MEMORANDUM TO COUNSEL OR PARTIES 
 
Appeal Number:  21-13194-JJ  
Case Style:  USA v. Maurice Fayne 
District Court Docket No:  1:20-cr-00228-MHC-JKL-1 
 
Electronic Filing 
All counsel must file documents electronically using the Electronic Case Files ("ECF") system, 
unless exempted for good cause. Although not required, non-incarcerated pro se parties are 
permitted to use the ECF system by registering for an account at www.pacer.gov. Information 
and training materials related to electronic filing are available on the Court's website. Enclosed 
is a copy of the court's decision filed today in this appeal. Judgment has this day been entered 
pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 
41(b).  
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for 
filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise 
provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is 
timely only if received in the clerk's office within the time specified in the rules. Costs are 
governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for 
attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.  
Please note that a petition for rehearing en banc must include in the Certificate of Interested 
Persons a complete list of all persons and entities listed on all certificates previously filed by 
any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be 
reheard must be included in any petition for rehearing or petition for rehearing en banc. See 
11th Cir. R. 35-5(k) and 40-1 .  
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming 
compensation for time spent on the appeal no later than 60 days after either issuance of mandate 
or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via 
the eVoucher system. Please contact the CJA Team at (404) 335-6167 or 
cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher 
system.  
USCA11 Case: 21-13194     Date Filed: 07/25/2022     Page: 1 of 2 

For questions concerning the issuance of the decision of this court, please call the number 
referenced in the signature block below. For all other questions, please call Tiffany A. Tucker, 
JJ at (404)335-6193.  
 
Sincerely, 
 
DAVID J. SMITH, Clerk of Court 
 
Reply to: Jeff R. Patch 
Phone #: 404-335-6151 
 
OPIN-1 Ntc of Issuance of Opinion 
 
USCA11 Case: 21-13194     Date Filed: 07/25/2022     Page: 2 of 2

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