[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 09-14597                  APR 30, 2010
                           Non-Argument Calendar              JOHN LEY
                                                                CLERK
                         ________________________

                     D. C. Docket No. 08-20617-CR-ASG

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

EVELLA GRISBY JORDAN,

                                                           Defendant-Appellant.


                         ________________________

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

                               (April 30, 2010)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

     On September 11, 2008, Evella Grisby Jordan pled guilty pursuant to a plea
agreement to Count 1 of an indictment which charged her and three others with

conspiracy to traffic in unauthorized access devices with intent to defraud, in

violation of 18 U.S.C. § 1029(a)(2). In the plea agreement, the parties agreed to

recommend that the district court impose a sentence within the Sentencing

Guidelines advisory sentence range and that the “court neither depart upward nor

depart downward under the Sentencing Guidelines when determining the advisory

sentencing guideline range.” At sentencing, the Government, responding to

Jordan’s objection to the probation officer’s presentence report recommendation

that the base offense level be enhanced by two levels pursuant to U.S.S.G. §

3B1.1(c) because she was the organizer and leader of the conspiracy, argued that

the enhancement was appropriate. The district court applied the enhancement and

sentenced Jordan to a prison term of 37 months. She now appeals the sentence.

      On appeal, Jordan argues that the Government breached the plea agreement

when it adopted the probation officer’s recommendation that the § 3B1.1(c)

enhancement be imposed because the plea agreement prohibited the Government

from requesting the court to “depart upward” from the Guidelines sentence range.

She asserts that although “depart upward” is not defined in the plea agreement, the

agreement contemplated all departures (including adjustments to the offense level)

because it referenced departures “under the Sentencing Guidelines.” Alternatively,



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she argues that if we determine that the meaning of the term is ambiguous, we must

resolve the ambiguity in her favor.

      If the government makes a material promise that induces a defendant to

plead guilty, the government must honor that promise. Santobello v. New York,

, 262, 

, 499, 

(1971). Whether a plea

agreement contains the promise asserted is determined according to the defendant’s

reasonable understanding of the agreement on entering the guilty plea. United

States v. Rewis, 

, 988 (11th Cir. 1992). “If the parties dispute the

meaning of the agreement, we interpret the terms of the plea agreement based on

objective standards.” United States v. Thomas, 

, 1360 (11th Cir.

2007) (per curiam).

      When interpreting a plea agreement, a “hyper-technical reading of the

written agreement” and “a rigidly literal approach in the construction of language”

should be avoided. United States v. Jefferies, 

, 1523 (11th Cir.

1990). Additionally, the court should read the written agreement “against the

background of the negotiations” and avoid interpretations that directly contradict

on oral understanding between the parties. 

terms in the plea

agreement are ambiguous, those terms must be read against the government. 

plea agreements are like contracts, contract law principles



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also apply when determining what the parties to the plea agreement intended the

terms in the agreement to mean. United States v. Rubbo, 

, 1334

(11th Cir. 2005). Thus, where there is nothing to indicate that the parties indicated

language to have a meaning other than its usual and ordinary meaning, the court

should apply that meaning. 

ordinary contract law, “technical

terms are given their usual legal meaning.” Robin v. Sun Oil Co., 

,

557 (5th Cir. 1977); see also Restatement (Second) of Contracts § 202(3)(b).

      Here, the term “depart upward” should be given its usual and ordinary

meaning in the context of sentencing under the Sentencing Guidelines. Therefore,

because the leader and organizer offense-level adjustment the Government argued

for does not fall within the definition of a departure, as that term is used in the

Sentencing Guidelines context, the Government did not breach the plea agreement.

Accordingly, we affirm Jordan’s conviction and sentence.

      AFFIRMED.




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