          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                        Fifth Circuit

                                No. 06-20421
                                                                      F I L E D
                              Summary Calendar                        August 23, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

FRANZ JOSEF HAMBRICK

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:05-CR-338-1


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Franz Josef Hambrick appeals his guilty plea conviction for conspiracy to
possess with intent to distribute more than 50 grams of methamphetamine.
Hambrick argues that the district court plainly erred by failing to withdraw his
guilty plea after the Government argued against his receiving a downward
adjustment for acceptance of responsibility in violation of the plea agreement.
      Because Hambrick did not object below, the court reviews for plain error.
See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001). The court decides

      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 06-20421

whether there has been a breach by determining whether the Government’s
conduct is consistent with the parties’ reasonable understanding of the
agreement. Id.
      The Government arguably did not breach the plea agreement because
Hambrick did not accept responsibility in the manner contemplated by the
Sentencing Guidelines. U.S.S.G. § 3E1.1, comment, (n.1(b), (g)). However, if the
Government breached the plea agreement by opposing the reduction for an
acceptance of responsibility, Hambrick has not shown under plain error review
that any error affected his substantial rights and seriously affected the fairness,
integrity, or public reputation of judicial proceedings. See United States v.
Miller, 406 F.3d 323, 336 (5th Cir. 2005). The record reflects that the district
court considered Hambrick’s conduct as described in the presentence report and
allowed Hambrick and his counsel to respond to the recommendation that he not
receive the adjustment for acceptance of responsibility. Hambrick has not shown
that if the Government had not opposed the adjustment for the acceptance of
responsibility, the district court would have made the adjustment. Id.
      The judgment is AFFIRMED.




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