UNITED STATES v. MARTINEZ AKA (2018)

SUMMARY ORDER

Cesar Martinez appeals from the May 16, 2016 judgment in the United States District Court for the Southern District of New York (Forrest, J.) following his plea of guilty to one count of Hobbs Act robbery in violation of 18 U.S.C. §§ 1951, 1952. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Plea agreements are construed strictly against the government, and the court does not “hesitate to scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness.” United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999). “To determine whether a plea agreement has been breached, we ‘look[ ] to the reasonable understanding of the parties as to the terms of the agreement.’ ” United States v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (quoting United States v. Colon, 220 F.3d 48, 51 (2d Cir. 2000) ). “When the Government breaches a plea agreement, the defendant is entitled to either withdraw his plea or have his agreement specifically performed.” United States v. Cimino, 381 F.3d 124, 127 (2d Cir. 2004). Where, as here, the defendant has failed to raise his objection to the plea agreement before the district court, we review for plain error, Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), which looks to whether there was “(1) error, (2) that is plain, and (3) that affects substantial rights” and “(4) [that] seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Thomas, 274 F.3d 655, 667 (2d Cir. 2001) (internal quotation marks and alterations omitted).

On appeal, Martinez argues that the government breached the plea agreement when it alerted the district court that the Probation Office’s recommendation in its Presentence Report (“PSR”) was consistent with the government recommendation, except for the PSR’s inclusion of a two-level enhancement for bodily injury. Martinez argues that the government acted duplicitously when it claimed not to be advocating for the enhancement while still agreeing with the PSR that the enhancement applied and setting forth its legal position on the issue. We disagree.

The plea agreement specifically states that if the Probation Office or the Court “contemplates any Guidelines adjustments, departures, or calculations different from those stipulated to above ․ the parties reserve the right to answer any inquiries and to make all appropriate arguments concerning the same.” App’x at 76. And that is what happened here: the PSR contemplated an enhancement for bodily injury not included in the plea agreement. Martinez argued vigorously against the enhancement in his sentencing submission; “not surprisingly,” Martinez’s objection “was slanted in favor of his position.” United States v. Amico, 416 F.3d 163, 166 (2d Cir. 2005). The government’s very brief response to Martinez’s arguments in a footnote, while specifically noting that it was not seeking the enhancement, was thus permissible under the terms of the plea agreement. See id.; see also United States v. Griffin, 510 F.3d 354, 364 (2d Cir. 2007) (suggesting that merely provid[ing] information or evidence in response to any statements by the defendant” does not breach the plea agreement).

We have considered the remainder of Martinez’s arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.