USA v. Cleon Major

Filing

Opinion issued by court as to Appellant Cleon Major. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-12392

Date Filed: 01/13/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12392
Non-Argument Calendar
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D.C. Docket No. 4:12-cr-10009-JEM-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLEON MAJOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 13, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Cleon Major appeals his conviction and sentence of 110 months of
imprisonment following his plea of guilty to defrauding the Gulf Coast Claims

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Facility by means of wire communications. 18 U.S.C. §§ 2, 1343. Major argues
that the United States violated his plea agreement by failing to recommend that he
receive a three-level reduction for acceptance of responsibility. See United States
Sentencing Guidelines Manual § 3E1.1 (Nov. 2012). Major also argues that his
sentence is unreasonable. We affirm.
I. BACKGROUND
Major entered a written agreement to plead guilty to one count of wire
fraud, see 18 U.S.C. § 2, 1343, in exchange for the dismissal of 11 charges for wire
fraud and access device fraud. The United States “agree[d] that it would
recommend at sentencing that the court reduce the sentencing guideline level
applicable to [Major’s] offense . . . based upon [his] recognition and affirmative
and timely acceptance of personal responsibility.” But the United States was
relieved of its obligation to make the sentencing recommendation if Major “fail[ed]
or refuse[d] to make full, accurate, and complete disclosure to the Probation Office
of the circumstances surrounding the relevant offense conduct”; “misrepresented
facts to the government prior to entering [the] plea agreement”; or “commit[ted]
any misconduct after entering into [the] plea agreement.” Major agreed both to
waive his right “to appeal any sentence imposed . . . or to appeal the manner in
which the sentence was imposed, unless the sentence exceed[ed] the maximum
permitted by statute or [was] the result of an upward departure from the advisory
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guideline range that the court establishe[d] at sentencing” and “to request that the
district court enter a specific finding that the . . . waiver of his right to appeal the
sentence imposed . . . was knowing and voluntary.” He also acknowledged that the
“appeal waiver include[d] a waiver of the right to appeal the sentence on the
ground that under the advisory Sentencing Guidelines range determined by the
court, the sentence imposed in [his] case [was] not a reasonable sentence.”
During the change of plea hearing, the district court questioned Major about
the waiver of his right to appeal his sentence. The district court asked Major,
“[D]o you understand that you’re waiving a very significant right in your right to
appeal in this case?,” to which Major responded, “Yes, I am.” The district court
then asked Major if he “underst[oo]d that [he was] pretty much giving up any right
to appeal []his case unless [he received] an illegal sentence,” and Major replied,
“Yes sir, I do.” After the district court confirmed that Major had discussed the
appeal waiver with his attorney and that counsel was confident that Major
understood his rights, the district court accepted Major’s plea of guilty.
Major’s presentence investigation report provided a total offense level of 25
that included a two-level enhancement because he obstructed justice by tampering
with a witness, see U.S.S.G. § 3C1.1. The report did not recommend that Major
receive a reduction for acceptance of responsibility because it was inconsistent
with his obstruction of justice. See id. § 3E1.1 n.4. With a criminal history
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category of VI, the report provided an advisory guidelines range between 110 and
137 months of imprisonment.
Major and the United States disagreed about Major’s right to a reduction for
acceptance of responsibility. Major objected to his presentence report and argued
that he was entitled to the three-level reduction and that he was not responsible for
losses attributable to his coconspirators. He contended that he had accepted
responsibility for his conduct and had not violated the conditions of his plea
agreement. The United States responded that Major was not entitled to the threelevel reduction because “it [was] apparent from [Major’s] instant effort and the
PSR that he [had] failed to abide by the terms of his Plea Agreement . . . by ‘(1)
failing or refusing to make [a] full, accurate, and complete disclosure to the
Probation Office’” and “[t]hat failure . . . relieve[d] the United States of any
obligation to recommend any reduction in his sentencing guideline predicated on
Section 3E1.1.” In reply, Major argued that “the Government [was] bound to
recommend that [he] receive” the reduction and he had satisfied the conditions for
the reduction because “he [had] consulted with Cherie Audette, [a] United States
Probation Officer” to prepare the presentence report and had “made all of the
necessary disclosures to her in order to receive an adjustment for acceptance of
responsibility.”

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The Probation Office responded to Major’s objections. In a second
addendum to the presentence report, Ms. Audette stated that Major’s
“representation of the instant offense was not included” in the report because
“Major[] declined to make any post arrest statements to the agents or the
government.” Audette offered to revise the presentence report “after sentencing to
include Major’s statements” if the district court “deem[ed] [the] information . . .
relevant.”
At the sentencing hearing, the district court directed Major to raise all
“issues that remain outstanding” or they would be treated as “waiv[ed].” Major
argued for a reduction for acceptance of responsibility, but he did not argue that the
United States violated the plea agreement. The district court denied Major’s
request for the three-level reduction on the ground that his obstruction of justice
was inconsistent with his acceptance of responsibility. See U.S.S.G. § 3E1.1 n.4.
The district court “considered the statements of all the parties, the Presentence
Report which contains the advisory guidelines[,] and the statutory factors” and
imposed a sentence at the low end of Major’s advisory guideline range.
II. STANDARDS OF REVIEW
We apply two standards of review in this appeal. Because Major failed to
object when given the opportunity during his sentencing hearing, we review his
argument about the alleged breach of the plea agreement for plain error. See
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Puckett v. United States, 556 U.S. 129, 134–36, 129 S. Ct. 1423, 1428–29 (2009).
Under that standard, Major must prove that there is error that is plain and that
violates his substantial rights. Id. at 135, 129 S. Ct. at 1429. We review de novo
the validity of Major’s waiver of his right to appeal his sentence. See United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).
III. DISCUSSION
Major argues that the United States violated its plea agreement by refusing
to recommend that he receive a reduction for acceptance of responsibility and that
his sentence is procedurally and substantively unreasonable. The United States
responds, in relevant part, that Major cannot prove that his substantial rights were
affected by the alleged breach of his plea agreement and that Major waived the
right to appeal the reasonableness of his sentence. We agree with the United
States.
Even if we were to assume that the United States breached the plea
agreement by refusing to recommend that Major receive the three-level reduction,
Major cannot prove that the breach prejudiced his substantial rights. See Puckett,
556 U.S. at 135, 129 S. Ct. at 1429. For an error to affect substantial rights,” a
defendant must prove that the error “affected the outcome of the district court
proceedings” to the point that it “undermine[s] confidence in the outcome.” United
States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005) (internal quotation
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marks and citations omitted). The United States refused to recommend a reduction
for acceptance of responsibility on the ground that Major failed to make a complete
disclosure of his involvement in the offense, but the district court refused to award
Major a reduction for acceptance of responsibility because it was inconsistent with
his obstruction of justice. See U.S.S.G. § 3E1.1 n.4. The alleged breach by the
United States did not affect the decision of the district court.
Major’s challenges to his sentence are barred by the appeal waiver in his
plea agreement. In his plea agreement, Major agreed to “waive[] [his] right to
appeal the sentence on the ground that . . . [it was] not a reasonable sentence.” The
district court discussed the waiver with Major during his change of plea hearing,
and Major acknowledged at that hearing that he had agreed to waive his right to
appeal his sentence. See Johnson, 541 F.3d at 1066. Major knowingly and
voluntarily waived the right to appeal the reasonableness of his sentence.
IV. CONCLUSION
We AFFIRM Major’s conviction and sentence.

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