Nos. 07-1580/1581/1582/1583/1584/1585/1586/1587/1588/1589/… v. John Evan Mizic

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 07-1580/1581/1582/1583/1584/1585/1586/1587/1588/1589/
1590/1591/1592/1593/1594/1595/1596/1597/1598/1599/1600
UNITED STATES OF AMERICA
v.
JOHN EVAN MIZIC,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 01-cr-00193, et al.)
District Judge: Honorable Sylvia H. Rambo
Submitted under Third Circuit LAR 34.1(a)
on May 13, 2008
Before: McKEE and ROTH, Circuit Judges
and PADOVA*, Senior District Judge
Opinion filed: September 21, 2009
O P I N I O N
*Honorable John R. Padova, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.

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We exercise plenary review over whether the government breached the terms of its1
plea agreement. United States v. Rivera, 357 F.3d 290, 293-94 (3d Cir. 2004). Plenary
review also applies to the district court’s interpretation of the Sentencing Guidelines; we
review any factual findings for clear error. United States v. Grier, 475 F.3d 556, 570 (3d
Cir. 2007).
2
ROTH, Circuit Judge:
John Mizic appeals the sentence he received for violating 18 U.S.C. § 751(a)
(escape), 18 U.S.C. § 1344 (bank fraud), and 18 U.S.C. § 1708 (possession of stolen
mail). Mizic argues that the government breached its plea agreement with him by
“undermining its recommendation for sentence reduction” and that the District Court’s
sentence was unreasonable because it erred in applying the sentencing guidelines to his
conduct. We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we refer to only as necessary to explain our decision. For the reasons
given below, we will affirm the District Court’s judgment of sentence in this matter.1
Mizic’s argument that the government undermined its recommendation for
sentencing reduction is wholly without merit. In the agreement, the parties stipulated to a
140-month sentence, with the potential for departure at the government’s
recommendation upon its determination that Mizic had provided substantial assistance in
uncovering the extent of his crimes and those of any others involved. The government
requested a sixteen-month reduction. The District Court, however, within its discretion
rejected this departure and we will not review this rejection. See U.S. v.Cooper, 437 F.3d
324, 332-33 (3d Cir. 2006). Mizic then received a 140-month sentence, as prescribed in

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Had it not requested a sixteen-month departure, the government could still have been2
in compliance with the agreement, which explicitly stated the government would
determine whether Mizic’s assistance was substantial.
3
the plea agreement. Because the sentence imposed was within the terms of the plea
agreement, the government did not breach it.2
Mizic’s second argument, that his sentence was unreasonable because the District
Court incorrectly calculated his sentence based on the guidelines, also fails. The plea
agreement states that “pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure, the government and the defendant stipulate and agree to the following
regarding the defendant’s offense level, criminal history category, and sentence: The
parties shall stipulate that the defendant’s sentence should be 140 months imprisonment
. . ..” An agreement entered under Rule 11(c)(1)(C) “binds the court once the court
accepts the plea agreement.” Fed. R. Crim. P. 11(c)(1)(C); United States v. Bernard, 373
F.3d 339, 343 (3d Cir. 2004). The District Court accepted the plea agreement; therefore,
it was reasonable for the court to sentence Mizic in accordance with the agreement’s
terms.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.

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