Case: 17-12576 Date Filed: 07/24/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12576 Non-Argument Calendar ________________________
D.C. Docket No. 0:16-cr-60152-WJZ-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CARLOS YOANY ESPINAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 24, 2018)
Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
John Carlos Yonay Espinal appeals his conviction and sentence of 97
months of imprisonment following his plea of guilty to conspiring to possess with Case: 17-12576 Date Filed: 07/24/2018 Page: 2 of 8
intent to distribute 500 grams or more of a mixture containing cocaine. 21 U.S.C.
§§ 841(a)(1), 846. Espinal argues, for the first time, that the government breached
its plea agreement. Espinal also argues that the imposition of a sentence at the low
end of his guideline range is unreasonable. We affirm in part and dismiss in part.
I. BACKGROUND
Espinal signed a written agreement to plead guilty to a conspiracy offense
involving a smaller amount of cocaine than was charged in his indictment. In
exchange for Espinal’s plea of guilty, the government agreed to dismiss a second
drug charge against Espinal and to recommend that he receive a reduction for
acceptance of responsibility, United States Sentencing Guidelines Manual § 3E1.1
(Nov. 2016), and a sentence “at the low end of the guideline range, as that range is
determined by the Court.” But the agreement relieved the government of its
obligation to make the recommendations if Espinal “fail[ed] or refuse[d] to make a
full, accurate and complete disclosure to the probation office”; “misrepresented
facts to the government prior to entering this plea agreement”; or “commit[ted] any
misconduct after entering into this plea agreement, including but not limited to
committing a state or federal offense, violating any term of release, or making false
statements or misrepresentations to any governmental entity or official.” The plea
agreement also provided that Espinal “knowingly and voluntarily” “waive[d] all
rights . . . to appeal any sentence imposed, . . . or to appeal the manner in which the
2 Case: 17-12576 Date Filed: 07/24/2018 Page: 3 of 8
sentence was imposed,” subject to three exceptions: his sentence “exceed[ed] the
maximum permitted by statute”; the district court departed or varied upward “from
the advisory guideline range that [it] establishe[d] at sentencing”; or “the United
States appeal[ed] the sentence.”
During the change of plea hearing, the district court discussed the plea
agreement with Espinal. Espinal confirmed that he had discussed the agreement
with his counsel before signing it, that he understood the terms of the agreement,
and that he understood the district court was not bound by the sentencing
recommendations in the agreement. Espinal acknowledged that his criminal history
would be an “important factor” in calculating his sentencing range and that he
could not withdraw his guilty plea as a result of the sentence he received. Espinal
also confirmed that he had conferred with counsel about the appeal waiver, he had
not been coerced to agree to the waiver, and he understood that he had waived the
right to appeal his sentence, subject to the exceptions provided in the agreement.
The district court accepted Espinal’s plea of guilty and extended his release on
bond while he attended a pretrial hearing on criminal charges pending against him
in the Southern District of New York. The terms of Espinal’s bond required that he
refrain from using a narcotic drug or other controlled substance unless it was
prescribed by a physician and that he submit to drug testing and to treatment.
3 Case: 17-12576 Date Filed: 07/24/2018 Page: 4 of 8
Espinal’s revised presentence investigation report stated that, after pleading
guilty, he thrice tested positive for marijuana, he missed several sessions of drug
counseling, he was arrested in New York for violating the terms of his pretrial
release, and he was declared a fugitive by the district court and was arrested for
failing to appear for a bond hearing. The report also recounted Espinal’s statements
to his probation officer in New York that he was not guilty of conspiracy and
pleaded guilty because he feared conviction following a trial and that he thought he
was “taking the fall for someone else.” The presentence report did not recommend
that Espinal receive a reduction for acceptance of responsibility because it was
inconsistent with his misconduct while on bond, his continued criminal activities,
and his failure to appear for his bond hearing. See U.S.S.G. § 3E1.1. With a base
offense of 30 and criminal history of III, the report provided an advisory guidelines
range of 121 to 151 months of imprisonment.
Espinal objected to the report and requested a reduction for acceptance of
responsibility, but the district court overruled his objection. Espinal admitted that
he had used illegal drugs and had failed to appear for his bond hearing, and he
blamed his misconduct on his mother’s illness, his drug addiction, and his
girlfriend’s pregnancy. The government argued that Espinal had “just fail[ed] to
accept any responsibility” and that his misconduct evidenced a “blatant disregard”
for authority. The district court remarked that Espinal’s “misconduct while out on
4 Case: 17-12576 Date Filed: 07/24/2018 Page: 5 of 8
bond was egregious,” determined that Espinal’s total offense level was 28, and
calculated a sentencing range of 97 to 121 months of imprisonment.
Espinal requested a sentence of 70 months and opposed a sentence of 97
months even though the “plea agreement talk[ed] about the low end of the
guidelines . . . .” The government responded that Espinal’s conduct was
“absolutely reprehensible” and that it was “not sure why [Espinal] reference[d] the
plea agreement” because “[t]hat plea agreement is out the window” after “[h]e has
violated every condition upon which we would be having to recommend the low
end of the guidelines.” The government argued that Espinal’s conduct warranted a
sentence of 121 months.
The district court sentenced Espinal to 97 months of imprisonment and five
years of supervised release. The district court found that “Espinal . . . waived his
right to appeal,” but “just to cover everything,” it informed Espinal that he had 14
days to appeal. At the conclusion of the hearing, the district court remarked that
Espinal’s “conduct releases the government from being bound to any
recommendations that they might have made pursuant to the plea agreement, but I
do not believe it releases [Espinal] from any agreement that he agreed to in the plea
agreement.”
II. STANDARDS OF REVIEW
5 Case: 17-12576 Date Filed: 07/24/2018 Page: 6 of 8
We apply two standards of review in this appeal. Because Espinal 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
Puckett v.
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Case: 17-12576 Date Filed: 07/24/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12576 Non-Argument Calendar ________________________
D.C. Docket No. 0:16-cr-60152-WJZ-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN CARLOS YOANY ESPINAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(July 24, 2018)
Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.
PER CURIAM:
John Carlos Yonay Espinal appeals his conviction and sentence of 97
months of imprisonment following his plea of guilty to conspiring to possess with Case: 17-12576 Date Filed: 07/24/2018 Page: 2 of 8
intent to distribute 500 grams or more of a mixture containing cocaine. 21 U.S.C.
§§ 841(a)(1), 846. Espinal argues, for the first time, that the government breached
its plea agreement. Espinal also argues that the imposition of a sentence at the low
end of his guideline range is unreasonable. We affirm in part and dismiss in part.
I. BACKGROUND
Espinal signed a written agreement to plead guilty to a conspiracy offense
involving a smaller amount of cocaine than was charged in his indictment. In
exchange for Espinal’s plea of guilty, the government agreed to dismiss a second
drug charge against Espinal and to recommend that he receive a reduction for
acceptance of responsibility, United States Sentencing Guidelines Manual § 3E1.1
(Nov. 2016), and a sentence “at the low end of the guideline range, as that range is
determined by the Court.” But the agreement relieved the government of its
obligation to make the recommendations if Espinal “fail[ed] or refuse[d] to make a
full, accurate and complete disclosure to the probation office”; “misrepresented
facts to the government prior to entering this plea agreement”; or “commit[ted] any
misconduct after entering into this plea agreement, including but not limited to
committing a state or federal offense, violating any term of release, or making false
statements or misrepresentations to any governmental entity or official.” The plea
agreement also provided that Espinal “knowingly and voluntarily” “waive[d] all
rights . . . to appeal any sentence imposed, . . . or to appeal the manner in which the
2 Case: 17-12576 Date Filed: 07/24/2018 Page: 3 of 8
sentence was imposed,” subject to three exceptions: his sentence “exceed[ed] the
maximum permitted by statute”; the district court departed or varied upward “from
the advisory guideline range that [it] establishe[d] at sentencing”; or “the United
States appeal[ed] the sentence.”
During the change of plea hearing, the district court discussed the plea
agreement with Espinal. Espinal confirmed that he had discussed the agreement
with his counsel before signing it, that he understood the terms of the agreement,
and that he understood the district court was not bound by the sentencing
recommendations in the agreement. Espinal acknowledged that his criminal history
would be an “important factor” in calculating his sentencing range and that he
could not withdraw his guilty plea as a result of the sentence he received. Espinal
also confirmed that he had conferred with counsel about the appeal waiver, he had
not been coerced to agree to the waiver, and he understood that he had waived the
right to appeal his sentence, subject to the exceptions provided in the agreement.
The district court accepted Espinal’s plea of guilty and extended his release on
bond while he attended a pretrial hearing on criminal charges pending against him
in the Southern District of New York. The terms of Espinal’s bond required that he
refrain from using a narcotic drug or other controlled substance unless it was
prescribed by a physician and that he submit to drug testing and to treatment.
3 Case: 17-12576 Date Filed: 07/24/2018 Page: 4 of 8
Espinal’s revised presentence investigation report stated that, after pleading
guilty, he thrice tested positive for marijuana, he missed several sessions of drug
counseling, he was arrested in New York for violating the terms of his pretrial
release, and he was declared a fugitive by the district court and was arrested for
failing to appear for a bond hearing. The report also recounted Espinal’s statements
to his probation officer in New York that he was not guilty of conspiracy and
pleaded guilty because he feared conviction following a trial and that he thought he
was “taking the fall for someone else.” The presentence report did not recommend
that Espinal receive a reduction for acceptance of responsibility because it was
inconsistent with his misconduct while on bond, his continued criminal activities,
and his failure to appear for his bond hearing. See U.S.S.G. § 3E1.1. With a base
offense of 30 and criminal history of III, the report provided an advisory guidelines
range of 121 to 151 months of imprisonment.
Espinal objected to the report and requested a reduction for acceptance of
responsibility, but the district court overruled his objection. Espinal admitted that
he had used illegal drugs and had failed to appear for his bond hearing, and he
blamed his misconduct on his mother’s illness, his drug addiction, and his
girlfriend’s pregnancy. The government argued that Espinal had “just fail[ed] to
accept any responsibility” and that his misconduct evidenced a “blatant disregard”
for authority. The district court remarked that Espinal’s “misconduct while out on
4 Case: 17-12576 Date Filed: 07/24/2018 Page: 5 of 8
bond was egregious,” determined that Espinal’s total offense level was 28, and
calculated a sentencing range of 97 to 121 months of imprisonment.
Espinal requested a sentence of 70 months and opposed a sentence of 97
months even though the “plea agreement talk[ed] about the low end of the
guidelines . . . .” The government responded that Espinal’s conduct was
“absolutely reprehensible” and that it was “not sure why [Espinal] reference[d] the
plea agreement” because “[t]hat plea agreement is out the window” after “[h]e has
violated every condition upon which we would be having to recommend the low
end of the guidelines.” The government argued that Espinal’s conduct warranted a
sentence of 121 months.
The district court sentenced Espinal to 97 months of imprisonment and five
years of supervised release. The district court found that “Espinal . . . waived his
right to appeal,” but “just to cover everything,” it informed Espinal that he had 14
days to appeal. At the conclusion of the hearing, the district court remarked that
Espinal’s “conduct releases the government from being bound to any
recommendations that they might have made pursuant to the plea agreement, but I
do not believe it releases [Espinal] from any agreement that he agreed to in the plea
agreement.”
II. STANDARDS OF REVIEW
5 Case: 17-12576 Date Filed: 07/24/2018 Page: 6 of 8
We apply two standards of review in this appeal. Because Espinal 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
Puckett v. United States, 556 U.S. 129, 134–36 (2009); United States v. De La
Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). Under that standard, Espinal must
prove that there is error that is plain and that violates his substantial rights. Puckett,
556 U.S. at 135; De La Garza, 516 F.3d at 1269. We review de novo the validity of
Espinal’s waiver of his right to appeal his sentence. See United States v. Johnson,
541 F.3d 1064, 1066 (11th Cir. 2008).
III. DISCUSSION
Espinal argues that the government breached the plea agreement by refusing
to recommend that he receive a reduction for acceptance of responsibility and that
his sentence is substantively unreasonable. The government responds that it did not
violate the plea agreement and that Espinal’s challenge to his sentence is barred by
the appeal waiver in his plea agreement. We agree with the government.
No plain error occurred when the government refused to recommend that
Espinal receive a reduction for acceptance of responsibility. “Whether the
government violated the agreement is judged according to the defendant’s
reasonable understanding of the agreement when he entered the plea.” United
States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007). Under the agreement, the
6 Case: 17-12576 Date Filed: 07/24/2018 Page: 7 of 8
government was “not . . . required to . . . recommend[]” that Espinal receive a
reduction for acceptance of responsibility if, after pleading guilty, he “commit[ted]
a state or federal offense, violat[ed] any term of release, or ma[de] false statements
or misrepresentations to any government entity or official.” Espinal engaged in
every form of proscribed conduct: he used illegal drugs, skipped drug counseling,
was arrested in New York and in Florida, and falsely denied guilt for conspiring to
possess cocaine. The recommendation promised to Espinal was conditional, and
his failure to comply with those conditions relieved the government of its
obligation to support Espinal’s request to reduce his sentence. See United States v.
Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). The government did not breach
the plea agreement.
The appeal waiver in Espinal’s plea agreement bars his argument that his
sentence is unreasonable. Although Espinal concedes that he knowingly and
voluntarily waived his right to appeal his sentence, see Johnson, 541 F.3d at 1066,
he argues that he was released from his waiver when the prosecutor stated at
sentencing that the “plea agreement is out the window.” But that observation that
Espinal violated his obligations under the plea agreement did not affect the
enforceability of the agreement. Nor did the district court release Espinal from his
appeal waiver when it, as a purely precautionary measure, advised him of his right
to appeal. When “an appeal waiver is voluntarily and knowingly entered into as
7 Case: 17-12576 Date Filed: 07/24/2018 Page: 8 of 8
part of a valid plea agreement, and that agreement is accepted by the court,” the
appeal waiver “cannot be vitiated or altered by comments the court makes during
sentencing.” United States v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006); see
United States v. Howle, 166 F.3d 1166, 1168–69 (11th Cir. 1999). We dismiss the
appeal of Espinal’s sentence.
IV. CONCLUSION
We AFFIRM Espinal’s conviction. We DISMISS Espinal’s appeal of his
sentence.
AFFIRMED IN PART AND DISMISSED IN PART.