United States v. Scott Carpenter, Jr.

2 Opinion of the Court 25-13353 id. § 924(c)(1)(A)(ii). He argues that the government breached its promise in the plea agreement "to recommend a Guideline sen- tence" by advocating for an upward variance at sentencing, and that the district court erred in denying a motion to suppress geo- location data from Google. After careful review, we conclude that Carpenter cannot satisfy the plain-error standard with respect to the government's alleged violation of its promise to recommend a sentence within the guidelines range, and that he waived his chal- lenge to the denial of the motion to suppress through his uncondi- tional guilty plea. Accordingly, we affirm.

I.

A federal grand jury charged Carpenter with committing a series of armed robberies. After the district court denied his mo- tion to suppress geo-location data from Google, Carpenter agreed to plead guilty under a written plea agreement. Under the plea agreement, Carpenter agreed to plead guilty to Counts Ten and Eleven of the second superseding indictment, which charged him with Hobbs Act robbery, see 18 U.S.C. § 1951(a), and with brandishing a firearm during and in relation to a crime of violence, see id. § 924(c)(1)(A)(ii), arising from an armed robbery of a Dollar Tree store on August 11, 2021. The govern- ment agreed to dismiss the remaining ten counts. The government also promised to "recommend to the Court that the defendant be sentenced within the defendant's applicable guidelines range as de- termined by the Court."

2

25-13353 Opinion of the Court 3 Before sentencing, a probation officer prepared Carpenter's presentence investigation report ("PSR"). The PSR calculated a to- tal offense level of 24 using "pseudo-counts," along with a criminal- history category of III, for a resulting guideline range of 63 to 78 months for Count Ten. The PSR noted that Count Eleven re- quired a consecutive sentence of at least 25 years. Carpenter objected to the inclusion of any pseudo-counts, among other things, and the government agreed. Both parties agreed that the total offense level should be 17, rather than 24, yielding a guideline range of 30 to 37 months. The district court sustained the objection and adopted the lower guideline range. The court then invited the parties' views on an appropriate sen- tence.

The government recommended a sentence at "the very top of the Guidelines," citing its promise in the plea agreement "to rec- ommend a Guideline sentence." But it advised that, "certainly, if Your Honor saw fit to vary upward, it would not necessarily be inappropriate in this case." In support of its recommendation, the government asserted that Carpenter, who was 46 at sentencing,

"ha[d] been committing robberies since he was 18 years old," that his crimes had become "increasingly violent," and that this was

"not his first time in federal court being convicted of a § 924(c)"

offense. The government also noted that, if this case had gone to trial, it could have proved § 924(c) offenses requiring a sentence of at least 175 years.

3

4 Opinion of the Court 25-13353 The district court inquired why, if that was the case, the gov- ernment entered into a plea agreement that would permit Carpen- ter's release in his 70s. The prosecutor explained that "at some point . . . it's just a lot of time," and that a sentence of 25-plus years was sufficient given his age. The court expressed sympathy for Carpenter's victims, noting that trial would have ensured that Car- penter would be in prison for the rest of his life, but that the prose- cutor had instead dismissed the other charges and decided to "let the judge take care of it." The prosecutor defended the plea agree- ment as a reasonable application of the government's discretion, which ensured that Carpenter was "guaranteed to be in prison until he was a very old man," while also leaving "room for [the court] to go higher if [it] saw fit."

Emphasizing the danger posed by Carpenter's conduct, and the fear he likely caused his victims, the district court again referred to the plea agreement and the government's agreement "to ask for a Guideline sentence." The prosecutor agreed that the govern- ment was bound by that provision and explained that his "argu- ment is not that you should vary upward. What I'm saying is, you should not vary downward, and you should not, you know, do a downward departure. . . . [Y]ou should give him [the] top of the Guidelines." The prosecutor confirmed that the government's sen- tencing recommendation was "37 months plus the 25 years." The court noted that the range was only seven months, so it was "not much of a difference." The prosecutor responded that it was more about the "message you're sending."

4

25-13353 Opinion of the Court 5 Carpenter asked for a "time-served sentence of the 29 months and four days he served" as to Count 10, plus the 25-year mandatory minimum as to Count 11. He did not object to the gov- ernment's sentencing arguments.

The district court ultimately sentenced Carpenter to 36 months on Count Ten, plus a consecutive term of 25 years on Count Eleven. Carpenter now appeals.

II.

Carpenter first argues that the government materially breached the plea agreement by recommending an above-guide- line sentence after promising to recommend a within-guideline sentence. In his view, the government paid mere "lip service" to its promise while "argu[ing] at length" for an upward variance. Ordinarily, we review de novo the question whether the government has breached a plea agreement. United States v. Malone, 51 F.4th 1311, 1318 (11th Cir. 2022). But where "as here, the defendant did not object before the district court that the gov- ernment breached a plea agreement, we review on direct appeal for plain error." Id.

"We find plain error when (1) an error has occurred, (2) the error was plain, and (3) it affected the defendant's substantial rights, and if those prongs are met, we then have discretion to correct the error if it (4) seriously affected the fairness of the judicial proceed- ings." Id. at 1319. "For an error to be considered plain, the error must be clear or obvious, rather than subject to reasonable dis-

5

6 Opinion of the Court 25-13353 pute." United States v. Sosa, 782 F.3d 630, 637 (11th Cir. 2015) (quo- tation marks omitted). It follows that not all breaches of a plea agreement will be clear or obvious. Id. "A defendant's substantial rights are affected if the error affected the outcome of the district court proceedings." Malone, 51 F.4th at 1319.

The government "breaches a plea agreement when it fails to perform the promises on which the plea was based." United States

v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016). In evaluating the question of breach, "we ask whether the government's conduct conflicted with the defendant's reasonable understanding of the government's promises when he entered his guilty plea." Malone,

51 F.4th at 1319. "We apply an objective standard to decide whether the government's actions are inconsistent with the de- fendant's understanding of the plea agreement, rather than reading the agreement in a hyper-technical or rigidly literal manner."

Hunter, 835 F.3d at 1324 (citations and quotation marks omitted). If the government breaches a material sentencing promise, "we may remand the case for resentencing before a different judge so that the defendant may be sentenced under the agreement."

Malone, 51 F.4th at 1319.

The government can breach a plea agreement by "advo- cat[ing] a position contrary to its agreed-upon recommendation."

United States v. Taylor, 77 F.3d 368, 77 F.3d 368, 371 (11th Cir. 1996). Thus, the government cannot merely pay "lip service" to the agree- ment while, at the same time, advancing "a position requiring a longer sentence than it had agreed to recommend." Id. And its

6

25-13353 Opinion of the Court 7

"begrudging recommendation," consistent with the plea agree- ment, may be "too little, too late to undo the effect of its breach."

Id. So as relevant here, "[t]he government may oppose [a] request for a downward variance but may not advocate a position contrary to its agreed-upon recommendation." Malone, 51 F.4th at 1322. Because it makes no difference to the outcome here, we as- sume without deciding that the government breached the plea agreement. But even assuming that to be the case, Carpenter has made no showing that any "error affected the outcome of the dis- trict court proceedings." Malone, 51 F.4th at 1319. Despite the gov- ernment's alleged breach, "the district court still sentenced [Car- penter] within the guidelines range as the court calculated it during the sentencing hearing." Id. at 1322. "And that was all [Carpenter] could argue the government had agreed to recommend under this part of the plea agreement." Thus, here, as in Malone, Carpenter cannot "satisf[y] the plain-error standard with respect to the gov- ernment's violation of its commitment to recommend a sentence within the guidelines range." Id.

We therefore uphold the plea agreement.

III.

Carpenter next argues that the district court erred in deny- ing his motion to suppress. He asserts that the "Google geofence warrant was overbroad, unparticularized, and lacked probable clause." But he concedes that if we uphold the plea agreement, then the "issues raised in the [m]otion to [s]uppress are foreclosed."

7

8 Opinion of the Court 25-13353

"[A] knowing and voluntary guilty plea waives all non-juris- dictional defects, including, as relevant here, the allegedly errone- ous denial of a motion to suppress evidence." United States v. Ed- wards, 142 F.4th 1270, 1276 (11th Cir. 2025) (citations and quotation marks omitted). While a defendant can preserve a challenge through a "conditional plea," see Fed. R. Crim. P. 11(a)(2), the gov- ernment must "give express approval for [the defendant] to plead conditionally," United States v. Pierre, 120 F.3d 1153, 1156-57 (11th Cir. 1997).

Here, Carpenter's guilty plea was unconditional, and he does not dispute that it was knowing and voluntary. He therefore waived his challenge to the "denial of a motion to suppress evi- dence." Edwards, 142 F.4th at 1276.

IV.

For these reasons, we affirm Carpenter's convictions and to- tal sentence for Hobbs Act robbery and brandishing a firearm dur- ing and in relation to a crime of violence.

AFFIRMED.

8