U.S. Court of Appeals for the Eleventh Circuit, 2025

United States v. Errol Michael Gilyot

U.S. Court of Appeals for the Eleventh Circuit · Decided June 2, 2025

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-11276 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiﬀ-Appellee, versus ERROL MICHAEL GILYOT,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Southern District of Alabama D.C. Docket No. 1:23-cr-00082-TFM-B-3 ____________________ USCA11 Case: 24-11276 Document: 38-1 Date Filed: 06/02/2025 Page: 2 of 8

2 Opinion of the Court 24-11276

Before NEWSOM, GRANT, and TJOFLAT, Circuit Judges.

PER CURIAM: Errol Gilyot appeals his 96-month sentence for conspiracy to commit bank fraud. He argues (1) that the District Court clearly erred in ﬁnding that he continued to engage in bank fraud after being released from pretrial custody and (2) that the Government breached the plea agreement by informing the District Court of his continued criminal conduct. We aﬃrm.

Gilyot was indicted for conspiracy and substantive bank fraud in connection with a scheme involving stolen checks, forged documents, and fraudulent ATM withdrawals. He pleaded guilty to the conspiracy charge under a written plea agreement. Under that agreement, the Government would recommend a sentence at the low end of the applicable Guidelines range and dismiss the other charge. The agreement also preserved both parties’ rights to allocute at sentencing.

While released on bond, Gilyot allegedly engaged in addi- tional fraudulent conduct. According to the Government’s sen- tencing memorandum and supporting exhibits, Gilyot exchanged messages with a co-conspirator about stolen checks, shared images of counterfeit checks, and discussed the use of bank accounts to deposit those checks and split the proceeds. Investigators tied this activity to Gilyot through his email, Instagram handle, and text ex- changes extracted from a co-conspirator’s phone.

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24-11276 Opinion of the Court 3 Gilyot’s presentence investigation report (PSR) calculated a total offense level of 24, a criminal history category of I, a Guide- lines imprisonment range of 51 to 63 months, and a Guidelines range of supervised release of 2 to 5 years. At sentencing, the Dis- trict Court explained that it was varying upward because of Gi- lyot’s “continued commission of crimes while he was on release.”

It sentenced Gilyot to 96 months’ imprisonment, followed by 5 years of supervised release.

Gilyot timely appeals.

II.

Gilyot ﬁrst argues that the District Court clearly erred in ﬁnding that he continued to engage in criminal conduct while on pretrial release. He contends that the evidence relied upon by the Government was circumstantial and insuﬃcient to establish his re- newed participation in the fraudulent scheme.

We review the District Court’s ﬁndings of fact for clear er- ror. United States v. Little, 864 F.3d 1283, 1290 (11th Cir. 2017) (cita- tion omitted). “For a factual ﬁnding to be clearly erroneous, this [C]ourt, after reviewing all of the evidence, must be left with a def- inite and ﬁrm conviction that a mistake has been committed.” Id. (citation and internal quotation marks omitted).

“When a defendant challenges one of the factual bases of his sentence . . . the Government has the burden of establishing the disputed fact by a preponderance of the evidence. This burden USCA11 Case: 24-11276 Document: 38-1 Date Filed: 06/02/2025 Page: 4 of 8

4 Opinion of the Court 24-11276 must be satisﬁed with reliable and speciﬁc evidence.” United States v. Sepulveda, 115 F.3d 882, 890 (11th Cir. 1997) (citation and internal quotation marks omitted). That standard is met when the court ﬁnds the fact more likely true than not. United States v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004).

The District Court’s ﬁnding that Gilyot resumed criminal conduct while on pretrial release was supported by multiple sources of reliable evidence. Instagram records tied to Gilyot’s known alias included discussions of continued fraud, references to sentencing timelines, and images of counterfeit checks. And text messages from an account linked to Gilyot’s Google email address contained similar content, including plans to retrieve fraudulent checks. Taken together, this evidence supported the District Court’s ﬁnding by more than a preponderance. 1 The Court did not clearly err.

Gilyot next contends that the Government breached the plea agreement by informing the District Court of his post-bond activ- ity. He argues that the Government’s disclosure undermined its USCA11 Case: 24-11276 Document: 38-1 Date Filed: 06/02/2025 Page: 5 of 8

24-11276 Opinion of the Court 5 sentencing recommendation and violated the spirit, if not the let- ter, of the plea agreement.

We review de novo whether the Government breached a plea agreement. 2 United States v. Tripodis, 94 F.4th 1257, 1261 (11th Cir. 2024) (citation omitted). “The government is bound by any ma- terial promises it makes to a defendant as part of a plea agreement that induces the defendant to plead guilty.” United States v. Taylor, 77 F.3d 368, 370 (11th Cir. 1996) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)).

The plea agreement here provided that “[t]he United States will recommend to the Court that the defendant be sentenced at the low end of the advisory sentencing guideline range as deter- mined by the Court.” It also preserved the Government’s right to allocute.

At sentencing, the Government stood by its commitment: it agreed with the Guidelines calculation in the PSR and recom- mended a sentence at the low end of the applicable range. At the same time, it told the Court about evidence that Gilyot had com- mitted criminal conduct after his release on bond. In doing so, the Government did not repudiate its recommendation but exercised its right—and its duty—to ensure the Court received complete and accurate information bearing on the 18 U.S.C. § 3553(a) factors.

2 While claims of breach are often raised on collateral review, we may resolve them on direct appeal where, as here, the record is sufficiently developed. Cf. United States v. Al-Arian, 514 F.3d 1184, 1190–91 (11th Cir. 2008).

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6 Opinion of the Court 24-11276 The prosecutor explained, [We want] to make the Court aware of these circum- stances, because one of the factors for the Court to consider is risk of recidivism, respect for the law, the other 3553(a) factors. . . Mr. Gilyot was released on conditions . . . that required him not to commit any additional violations of federal, state, or local law. But based on the evidence that we’ve put before the Court . . . it appears that the defendant repeatedly violated that by continuing to engage with other folks know- ingly in the production of counterfeit checks, the theft of mail, et cetera. . . . So, all things considered, Your Honor, as far as the defendants in this case go and the culpability, we are hard pressed to say that Mr. Gilyot isn’t near the top of the list in terms of culpa- bility in the scheme.

That said, he did spare the United States the expense of a trial. He’s received acceptance of responsibility credit, notwithstanding some signiﬁcant concerns that we have with respect to his continued criminality and recidivism.

And so we’re not at the point where the United States is withdrawing its Plea Agreement or not giving the defendant the beneﬁt of his bargain. We think that’s appropriate. But we would be remiss if we didn’t put the Court on notice of potential signiﬁcant continued criminality by the defendant while on release condi- tions.

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24-11276 Opinion of the Court 7 In response to Gilyot’s contention at sentencing that the Government may have violated the plea agreement, the Court said, “make no mistake, as oﬃcers of the court, if [the Government] did not advise me of signiﬁcant matters such as this, they would have a separate issue with me.” And the Government made clear that, “We have not rescinded the Plea Agreement, nor did we depart from the recommendation that we set forth therein.” This is sup- ported by the Government’s sentencing memorandum ﬁled before the sentencing hearing, which discussed the alleged crimes at issue but still recommended a 51-month sentence.

Gilyot’s counsel framed the Government’s conduct as a breach akin to that in Santobello v. New York, where a prosecutor aﬃrmatively broke a promise not to make any sentencing recom- mendation. 404 U.S. at 262–63, 92 S. Ct. at 499. But this case is dis- tinguishable. Here, the Government fulﬁlled its express commit- ment to recommend a low-end Guidelines sentence. Unlike in San- tobello, there was no repudiation of a promise nor an aﬃrmative reversal in position; rather, the Government exercised its preserved right to allocute and provided relevant information concerning the § 3553(a) factors.

At bottom, Gilyot’s argument is not that the Government failed to recommend a low sentence—it did—but that it failed to ad- vocate for one by minimizing adverse facts. That distinction does not amount to a breach of the plea agreement. Said diﬀerently, a plea agreement that calls for a recommendation does not obligate the Government to minimize or ignore adverse facts, especially USCA11 Case: 24-11276 Document: 38-1 Date Filed: 06/02/2025 Page: 8 of 8

8 Opinion of the Court 24-11276 where the agreement preserves the Government’s right to allocute and where the defendant has violated conditions of release. Accord United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992) (“The solemnization of a plea agreement does not preclude the govern- ment from disclosing pertinent information to the sentencing court.” (citation omitted)); see also United States v. Horsfall, 552 F.3d 1275, 1282–83 (11th Cir. 2008)) (“Because the [plea] agreement per- mitted the government to introduce such information and the gov- ernment did not explicitly oppose a sentence within the guideline range, the government did not violate the plea agreement.”).

We ﬁnd no error.

III.

The District Court did not clearly err in ﬁnding that Gilyot resumed criminal conduct while on pretrial release, nor did the Government breach the plea agreement. The judgment is aﬃrmed.

AFFIRMED.

1 On appeal, Gilyot seems to take fault with the search of his co-conspirator’s phone because it was “performed by a city cop” who “[did] not possess the requisite knowledge, skill, and experience to extract data from cell phones.” But at the sentencing hearing, Gilyot’s counsel said that “the evidence offered today was proper.” That concession undercuts his current argument, as a party cannot waive an objection below and revive it on appeal. See United States v. Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (“[W]hile forfeited claims are reviewed under Rule 52(b) for plain error, waived claims are not.”).

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