Opinion — United States v. Maurice Fayne, USCA11 Case: 21-13194, Date Filed: 07/25/2022 (Document 30-1, 11th Cir.)

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A per curiam opinion marked Do Not Publish of the United States Court of Appeals for the Eleventh Circuit in United States v. Maurice Fayne, No. 21-13194, Document 30-1, dated July 25, 2022, on appeal from the Northern District of Georgia, D.C. Docket No. 1:20-cr-00228-MHC-JKL-1. Fayne appeals a 210-month sentence imposed after he pled guilty under a plea agreement that required the government to recommend a 151-month sentence. Fayne argues that the government breached the agreement at sentencing. The court applies plain error review, concludes that Fayne cannot show the district court erred or that any error affected his substantial rights, and affirms.

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USCA11 Case: 21-13194

Document: 30-1

Date Filed: 07/25/2022

Page: 1 of 6

[DO NOT PUBLISH]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
____________________

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Document: 30-1

Date Filed: 07/25/2022

Opinion of the Court

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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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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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Opinion of the Court

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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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