     Case: 14-50599      Document: 00512999818         Page: 1    Date Filed: 04/09/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50599
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 9, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CELSO ZAMARRIPA-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-1243-4


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Celso Zamarripa-Ramirez pleaded guilty, pursuant to a plea agreement,
to one count of conspiracy to transport aliens and was sentenced to 30 months
of imprisonment. Although he acknowledges that he signed an appeal waiver
in connection with his plea agreement, he argues that he should be able to
appeal his sentence because the government breached the plea agreement by
not moving for an acceptance-of-responsibility reduction under Section 3E1.1


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-50599

of the U.S. Sentencing Guidelines (“U.S.S.G.”). Because Zamarripa-Ramirez
has failed to show that the government breached the plea agreement, we
DISMISS the appeal.
                         FACTUAL BACKGROUND
      In November 2013, Zamarripa-Ramirez entered into a “Fast-Track Plea
Agreement,” pleading guilty to one count of conspiracy to transport aliens, in
violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) & (B)(i).       The plea agreement
contained a two-page factual basis. In exchange for Zamarripa-Ramirez’s plea,
the Government stated: “This office shall not contest any Pre-Sentence
Investigation Report (‘PSR’) recommendations that the applicable guideline
offense levels be adjusted to reflect Defendant’s acceptance of responsibility, as
provided by Sentencing Guidelines § 3E1.1(a) & (b).” The agreement also
provided that if the court found that Zamarripa-Ramirez was entitled to the
adjustment and that his base offense level before the adjustment was at least
level 16, the government agreed “to move for the third-level reduction at the
time of sentencing based on the defendant’s timely agreement to plead
guilty[.]” The agreement also included an appeal waiver provision.
      The PSR, which was prepared by the United States Probation Office
prior to sentencing, did not recommend that Zamarripa-Ramirez be awarded
an adjustment for acceptance of responsibility.            The PSR stated that
“[a]lthough the defendant has pleaded guilty to Conspiracy to Transport Illegal
Aliens, his statement [during the presentence interview] . . . appears to
minimize his role in the offense. The statement provided by the defendant does
not merit an adjustment for acceptance of responsibility under USSG
§ 3E1.1(a).” At sentencing, the district court asked the government why there
had been no recommendation for an acceptance-of-responsibility reduction.
The Government responded: “Your Honor, it’s my understanding that the



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                                  No. 14-50599

acceptance of responsibility interview [that] was conducted with the defendant
following his plea of guilty. . . . [d]iffered from the facts in his plea agreement,
and that he was minimizing his role in the offense, he was not fully accepting
responsibility.” Zamarripa-Ramirez’s counsel then spoke on the issue and
explicitly stated that he was not objecting to the PSR’s refusal to recommend
a reduction because “we looked at the final . . . offense level and the final
outcome, we felt that that was a fair sentence.”
                                 DISCUSSION
      On appeal, Zamarripa-Ramirez argues that the appeal waiver in his plea
agreement is not enforceable because the government breached the plea
agreement. He further claims that the district court clearly erred by denying
him the adjustment for acceptance of responsibility.
      “The party alleging a breach of the plea agreement bears the burden of
proving the underlying facts establish a breach by a preponderance of the
evidence.” United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). “We
must interpret the plea agreement like a contract, in accord with what the
parties intended.” United States v. Bond, 414 F.3d 542, 545 (5th Cir. 2005); see
also Gonzalez, 309 F.3d at 886 (“[This] court must determine whether the
government’s conduct is consistent with the parties’ reasonable understanding
of the agreement.” (internal quotation marks and citation omitted)). Because
Zamarripa-Ramirez did not argue to the district court that the plea agreement
was breached, we review this claim for plain error. See Puckett v. United
States, 556 U.S. 129, 135-36 (2009).
      Zamarripa-Ramirez argues that “when the government suggested to the
district court that he not receive credit for acceptance of responsibility they for
all practical purposes disagreed and contested that Zamarripa’s offense level
should be adjusted to reflect his acceptance of responsibility.” He claims that



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                               No. 14-50599

the government’s opposition of the acceptance-of-responsibility reduction
breached the plea agreement. We disagree.
     Zamarripa-Ramirez’s plea agreement          clearly provided     that the
government agreed “not [to] contest any [PSR] recommendations that the
applicable guideline offense levels be adjusted to reflect Defendant’s
acceptance of responsibility, as provided by Sentencing Guidelines § 3E1.1(a)
& (b).” The PSR did not contain any such recommendations and, accordingly,
the government did not contest any PSR recommendations in violation of the
plea agreement. Instead, the government responded to the district court’s
questioning and explained its “understanding” of why the PSR did not include
an acceptance-of-responsibility recommendation.      This explanation by the
government did not breach its agreement with Zamarripa-Ramirez.
     Because Zamarripa-Ramirez has not proven that the government
breached its plea agreement, the appeal waiver contained in that agreement is
enforceable and bars the current appeal. Therefore, to the extent Zamarripa-
Ramirez argues that the district court erred in not granting him a reduction
for acceptance of responsibility, the argument is barred by the appeal waiver
in his plea agreement. Bond, 414 F.3d at 544.
     The appeal is DISMISSED.




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