USA v. Marquis Kewon Oliver

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10491
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARQUIS KEWON OLIVER,
a.k.a. Fred,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:19-cr-00167-TFM-MU-1
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2 Opinion of the Court 22-10491
____________________
Before WILLIAM PRYOR , Chief Judge, and J ILL PRYOR and BRANCH,
Circuit Judges.
PER CURIAM:
Marquis Oliver appeals his sentence of 188 months of im-
prisonment imposed after he pleaded guilty to conspiring to pos-
sess with intent to distribute a controlled substance. 21 U.S.C.
§ 846. After Oliver’s appointed appellate counsel moved to with
withdraw and filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), we denied counsel’s motion without prejudice because
counsel’s brief omitted three issues: whether the government
breached the plea agreement by objecting to Oliver’s eligibility for
safety-valve relief, 18 U.S.C. § 3553(f); whether Oliver was eligible
for safety-valve relief or whether his appeal should be held in abey-
ance pending our en banc rehearing of United States v. Garcon, 997
F.3d 1301 (11th Cir. 2021), rev’d en banc, 54 F.4th 1274 (11th Cir.
2022); and whether Oliver’s prior convictions qualified as crimes of
violence for the career offender enhancement, United States Sen-
tencing Manual § 4B1.1 (Nov. 2018). Oliver responded by filing a
merits brief. We affirm.
We ordinarily review whether the government breached a
plea agreement de novo. United States v. De La Garza, 516 F.3d 1266,
1269 (11th Cir. 2008). But when a defendant failed to object to an
alleged breach in the district court, he must establish not only that
an error occurred that was plain, but that the error affected his
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22-10491 Opinion of the Court 3
substantial rights by “show[ing] a reasonable probability that, but
for the error,” the outcome of his proceeding would have been dif-
ferent. United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004); see
Puckett v. United States, 556 U.S. 129, 135 (2009).
Oliver argues that the government breached a provision of
the plea agreement that prohibited it from objecting to his argu-
ment that he was eligible for the safety valve despite his prior con-
victions, but he concedes that he was nevertheless ineligible for
safety valve relief because he refused to provide necessary debrief-
ing information to the government. See 18 U.S.C. § 3553(f)(5) (re-
quiring the defendant to have “truthfully provided to the Govern-
ment all information and evidence the defendant has concerning
the offense”). Because Oliver concedes that his sentence was unaf-
fected by the alleged breach, he cannot establish plain error. See
Puckett, 556 U.S. at 135, 142 n.4; Garcon, 54 F.4th at 1279 (explaining
that “the sentencing court must find that a defendant satisfies each
of subsections (f)(1) through (f)(5)” to be eligible for safety-valve
relief (emphasis added)).
Regarding his designation as a career offender, Oliver asserts
that his “Prior Assault-related Convictions Qualified as Crimes of
Violence for Purposes of the Career Offender Enhancement.” Oli-
ver explains that trial counsel objected that Oliver’s convictions for
attempted first-degree assault, A LA . C ODE § 13A-6-20, and two
counts of second-degree assault against a police officer, id. § 13A-6-
21, should not qualify as crimes of violence, but Oliver offers no
argument that the district court erred in sentencing him as a career
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4 Opinion of the Court 22-10491
offender. See United States v. Campbell, 26 F.4th 860, 871 (11th Cir.
2022). Even if Oliver had challenged his designation as a career of-
fender, his appeal waiver would be unaffected by the government’s
harmless breach of the separate safety-valve provision of the plea
agreement, and he does not dispute that he knowingly and volun-
tarily waived his right to appeal his sentence except in limited cir-
cumstances that do not apply. See United States v. Bushert, 997 F.2d
1343, 1351 (11th Cir. 1993).
We AFFIRM Oliver’s conviction and sentence.
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