USCA11 Case: 19-14072       Date Filed: 11/10/2020   Page: 1 of 10



                                                          [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                   No. 19-14072
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket No. 1:18-cr-20942-RKA-1



UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

versus

ALIET HUSSEIN,
a.k.a. Aliet Pino Garcia,

                                                          Defendant - Appellant.

                             ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                (November 10, 2020)

Before MARTIN, ROSENBAUM, and LAGOA, Circuit Judges.

PER CURIAM:
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      Aliet Hussein (“Hussein”) appeals the denial of her motion for specific

performance of her plea agreement. Hussein argues that the government breached

the plea agreement by advocating for a three-level aggravating role enhancement

and opposing her motion for a downward variance. For the following reasons, we

affirm.

I.    FACTUAL AND PROCEDURAL HISTORY

      From about February 2015 to December 2018, Hussein owned and operated

Sky Pharmacy. Through Sky Pharmacy, Hussein engaged in a scheme in which she

submitted, or caused the submission of, false Medicare Part D claims for

prescriptions that were never filled. On December 6, 2018, the government charged

Hussein with twelve counts of health care fraud in violation of 18 U.S.C. § 1347.

      On July 24, 2019, Hussein entered into a plea agreement with the government.

Hussein agreed to plead guilty to Count 1 of the indictment, and the government

agreed to dismiss the remaining counts after sentencing. Paragraph 7 of the plea

agreement stated as follows:

            This Office and the defendant agree that, although not binding
      on the probation office or the Court, they will jointly recommend that
      the Court make the following findings and conclusions as to the
      sentence to be imposed:

             a.    Base Offense Level: the parties agree that the base offense
      level applicable to the defendant’s conduct is level six (6) pursuant to
      Sentencing Guidelines §2B1.1(a)(2).




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             b.    Intended Loss: the parties agree that the defendant’s
      participation in the offense caused an intended loss to Medicare
      exceeding $1.5 million but not exceeding $3.5 million, resulting in a
      sixteen (16) level enhancement pursuant to Sentencing Guidelines
      §2B1.1(b)(1)(I).

            c.    Federal Health Care Program: the parties agree that the
      defendant’s offense of conviction is a Federal health care offense
      involving a Government health care program, and the loss to the
      Government health care program exceeds $1 million but does not
      exceed $7 million, resulting in a two (2) level enhancement under
      Sentencing Guidelines §2B1.1(b)(7).

            Then Defendant remains free to advocate for or against any other
      sentencing adjustments under the guidelines, and to argue for
      sentencing variances under 18 U.S.C. § 3553(a).

(emphasis in original). The government further agreed to recommend, under certain

conditions, a two-level reduction for acceptance of responsibility pursuant to

U.S.S.G. § 3E1.1(a), an additional one-level reduction pursuant to U.S.S.G.

§ 3E1.1(b) if the offense level at the time of sentencing was sixteen or greater, and

“that the Defendant receive a sentence at the low-end of the sentencing guidelines,

as those guidelines are calculated by Probation.”

      In Paragraph 5 of the plea agreement, the government reserved its rights as

follows:

            This Office reserves the right to inform the Court and the
      probation office of all facts pertinent to the sentencing process,
      including all relevant information concerning the offenses committed,
      whether charged or not, as well as concerning the defendant and the
      defendant’s background. Subject only to the express terms of any
      agreed-upon sentencing recommendations contained in this agreement,



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      this Office further reserves the right to make any recommendation as to
      the quality and quantity of punishment.

The plea agreement included a warning that:

      [A]ny estimate of the probable sentencing range or sentence that the
      defendant may receive, whether that estimate comes from the
      defendant’s attorney, this Office, or the probation office is a prediction,
      not a promise, and is not binding on this Office, the probation office or
      the Court. The defendant understands further that any recommendation
      that this Office makes to the Court as to sentencing, whether pursuant
      to this agreement or otherwise, is not binding on the Court and the Court
      may disregard the recommendation in its entirety.

Finally, the plea agreement included an integration clause, stating: “This is the entire

agreement and understanding between this Office and the defendant. There are no

other agreements, promises, representations, or understandings.”

      The Presentence Investigation Report (“PSI”) mostly accorded with the plea

agreement. Applying the 2018 Sentencing Guidelines, the PSI set the base offense

level at six. See U.S.S.G. § 2B1.1(a)(2). The PSI also recommended a sixteen-level

enhancement because the loss amount was between $1.5 million and $3.5 million

and a two-level enhancement because the conviction involved a loss of greater than

$1 million to a federal health care program. See id. § 2B1.1(b)(1)(I), (b)(7)(A). The

PSI further recommended a three-level reduction for acceptance of responsibility.

See id. § 3E1.1(a)–(b). The PSI departed from the plea agreement, however, in

recommending a three-level enhancement because “the defendant was a manager or

supervisor (but not an organizer or leader) of a criminal activity that was otherwise



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extensive.” See id. § 3B1.1(b). The PSI calculated a total offense level of twenty-

four. With a criminal history category of I, the recommended guideline range was

fifty-one to sixty-three months of imprisonment. See U.S.S.G. Sentencing Table,

ch. 5, pt. A. Had the PSI not applied the three-level role enhancement, the total

offense level would have been twenty-one and the guideline range would have been

thirty-seven to forty-six months’ imprisonment. See id. The statutory maximum

sentence was ten years. See 18 U.S.C. § 1347(a).

      Hussein filed objections to the PSI, specifically objecting to the three-level

role enhancement. She also moved for a downward variance pursuant to 18 U.S.C.

§ 3553. The government responded that the role enhancement was appropriate and

opposed a downward variance. Hussein then moved for specific performance,

arguing that the government had violated the plea agreement by advocating for the

role enhancement and opposing a downward variance. Hussein argued that, because

Paragraph 7 of the plea agreement specified that the defendant was free to advocate

for or against additional sentencing adjustments, it unambiguously precluded the

government from advocating for sentencing enhancements beyond those agreed to

as part of the plea. She also attached email correspondence between herself and the

government stating that “[i]f the Defendant goes to trial, we will seek enhancements

for role.” Finally, Hussein argued that the plea agreement’s statement that she was




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free to argue for a downward variance created the “‘reasonable understanding’ that

the Government would not oppose her motion for a variance.”

      The district court conducted a sentencing hearing on October 4, 2019.

Looking specifically at Paragraph 5 and Paragraph 7, the district court found “that

the most reasonable reading of the plea agreement is that the plea agreement is

unambiguous in allowing either the government or probation, or both, to seek

enhancements, allowing [Hussein] to seek reductions, and, of course, allowing

[Hussein] to oppose those enhancements, if they are advocating for those

enhancements.” The district court, therefore, concluded that the government did not

breach the plea agreement by advocating for a role enhancement and opposing a

downward variance.

      Next, the district court addressed the merits of the three-level role

enhancement. The court sustained in part and overruled in part Hussein’s objection,

finding that she was an organizer, leader, manager, or supervisor of criminal activity,

but that the government had not met its burden to prove that the criminal activity

was “otherwise extensive.” The court therefore imposed a two-level enhancement

pursuant to U.S.S.G. § 3B1.1(c), rather than the three-level enhancement

recommended in the PSI. This resulted in an offense level of 23 and a guideline

range of forty-six to fifty-seven months of imprisonment. See U.S.S.G. Sentencing

Table, ch. 5, pt. A. Pursuant to the plea agreement, the government advocated for a



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sentence of forty-six months, the low end of the range. The government also

reiterated its opposition to a downward variance. Hussein argued in favor of a

downward variance, requesting house arrest. She called two witnesses in support of

her argument and testified on her own behalf. The court denied the downward

variance and sentenced Hussein to forty-six months of imprisonment, as well as

restitution of $1,884,867.09, three years of supervised release, and a $100 special

assessment. This appeal ensued.

II.    STANDARD OF REVIEW

       “We review de novo whether the government breached a plea agreement.”

United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007).

III.   ANALYSIS

       “[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971).

Plea agreements are typically interpreted using contract interpretation tools. United

States v. Jeffries, 908 F.2d 1520, 1523 (11th Cir. 1990). In determining whether the

government breached a plea agreement, we must first ascertain the scope of the

government’s promises. United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir.

2004). “The district court’s factual findings on the scope of the agreement will be

set aside only if they are clearly erroneous.” Id.



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      Hussein contends that the plea agreement prohibited the government from

advocating for a role enhancement or opposing a downward variance. In Paragraph

5 of the plea agreement, the government plainly reserved its rights to “inform the

Court and the probation office of all facts pertinent to the sentencing process” and

to “make any recommendation as to the quality and quantity of punishment.” The

government did just that when it advocated for a role enhancement and opposed a

downward variance. This reservation of rights was “[s]ubject only to the express

terms of any agreed-upon sentencing recommendations contained in th[e]

agreement.” Hussein argues that this language means that the government was not

authorized to make recommendations beyond those expressly agreed to in the plea.

But a plain reading of this language indicates that the government could not

contradict the express terms of the plea. On matters where the plea agreement was

silent, including a role enhancement and downward variance, the government was

free to “make any recommendation as to the quality and quantity of punishment.”

Cf. Raulerson, 901 F.2d at 1012 (“Raulerson failed to negotiate for or failed to obtain

the government’s silence at his sentencing hearings; thus, we hold that the

government did not breach its agreement regarding standing mute.”).

      Hussein argues that Paragraph 5 conflicts with Paragraph 7 and that because

Paragraph 7 is more specific, it should control. See United States v. Pielago, 135

F.3d 703, 710 (11th Cir. 1998) (“When two contract terms conflict, the specific term



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controls over the general one.”). Hussein further argues that because Paragraph 7

gave her, and not the government, the right to advocate for sentencing adjustments

and variances, the government’s right to advocate beyond the terms of the agreement

was limited through omission. We conclude, however, that the two paragraphs are

not in conflict but rather, they complement each other. Paragraph 7 lays out specific

terms of the plea agreement and reserves Hussein’s rights, while Paragraph 5

reserves the government’s rights. Reading both paragraphs together, it is clear that

the government and Hussein were jointly bound to make the recommendations listed

in Paragraph 7, Hussein was “free to advocate for . . . any other sentencing

adjustments,” and the government reserved its rights to “make any recommendation

as to the quality and quantity of punishment,” which Hussein was “free to advocate

. . . against.” Likewise, although Paragraph 7 made clear that Hussein was “free . . .

to argue for sentencing variances under 18 U.S.C. § 3553(a),” the plea agreement

neither made a promise nor contained any language precluding the government from

opposing the request for a sentence variance.

      We find this Court’s decisions in United States v. Boatner, 966 F.2d 1575

(11th Cir. 1992), and United States v. Taylor, 77 F.3d 368 (11th Cir. 1996),

instructive regarding the type of inconsistent statements at sentencing that could

constitute a breach of the plea agreement by the government. In Boatner, the

government “provid[ed] information to the court in the presentence investigation



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report which contradicted a factual stipulation with the defendant.” 966 F.2d at

1576. In Taylor, the government “promise[d] to recommend a ten-year sentence”

but then “[a]dvoca[ted] [for] a position requiring a greater sentence.” 77 F.3d at 370.

      Here, in contrast, there was no contrary statement of fact, nor did the plea

agreement promise that the government would recommend a particular sentence.

Rather, in the plea agreement, the government promised that it would make five

discrete recommendations: (1) a base offense level of six; (2) a sixteen-level loss

amount enhancement; (3) a two-level federal health care offense enhancement; (4) a

three-level acceptance of responsibility reduction, subject to certain conditions; and

(5) a sentence on the low end of the guideline range. The record shows that the

government made each of the five promised recommendations.

IV.   CONCLUSION

      Because we find that the terms of the plea agreement were unambiguous, and

that the government did not breach those terms, we affirm the district court’s denial

of Hussein’s motion for specific performance.

      AFFIRMED.




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