     Case: 11-50067     Document: 00511686770         Page: 1     Date Filed: 12/06/2011




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

                                                                            FILED
                                                                         December 6, 2011
                                     No. 11-50067
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO ANDRES BARBOZA-MALDONADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:09-CR-99-1


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Rogelio Barboza-Maldonado pleaded guilty, pursuant to a written plea
agreement, to possession of five or more kilograms of cocaine with intent to
distribute and received a 151-month prison sentence to be followed by five years
of supervised release.         On appeal, Barboza-Maldonado argues that the
Government breached the terms of the plea agreement. He also contends that
the district court erred by denying him credit for acceptance of responsibility.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50067

      As Barboza-Maldonado concedes, he did not object based on a breach of
the plea agreement in the district court; thus, our review is for plain error only.
See Puckett v. United States, 129 S. Ct. 1423, 1428-33 (2009). When determining
whether the Government violated the terms of a plea agreement, we must
consider “whether the government’s conduct is consistent with the defendant’s
reasonable understanding of the agreement.” United States v. Lewis, 476 F.3d
369, 387-88 (5th Cir. 2007) (citing United States v. Valencia, 985 F.2d 758, 761
(5th Cir. 1993).
      Barboza-Maldonado specifically asserts that his plea agreement limited
him to being punished solely for the offense charged and that by failing to
mention that relevant conduct not included in the factual resume could be used
to enhance his sentence, the Government breached its agreement not to
criminally prosecute him for other acts arising from the conduct charged. He
further contends that the Government breached its obligation to move for an
additional point reduction for acceptance of responsibility.
      The Government never promised to refrain from using relevant conduct,
where appropriate, to calculate the offense level. The plea agreement provided
that the sentence “may be determined in accordance with the . . . Sentencing
Guidelines . . . based on information the Government and Defendant provide the
Court.” Section 1B1.3(a) of the United States Sentencing Guidelines provides
that relevant conduct shall be considered when determining the defendant’s base
offense level. It is well established that non-adjudicated offenses may be
considered relevant conduct under the Guidelines. United States v. Brummett,
355 F.3d at 343, 344 (5th Cir. 2003); see also U.S.S.G. §1B1.1, comment. (n.1(H))
(defining “offense” to include “the offense of conviction and all relevant conduct
under § 1B1.3”). Moreover, the inclusion of relevant conduct in the calculation
of the guidelines sentencing range is not a violation of the Government’s
agreement not to prosecute a defendant for additional offenses. See United
States v. Hoster, 988 F.2d 1374, 1378 (5th Cir. 1993).

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                                 No. 11-50067

      In addition, the Government was under no obligation to move for the
additional point reduction because it agreed to make such a motion only if
Barboza-Maldonado was entitled to a two-level reduction for acceptance of
responsibility pursuant to United States Sentencing Guidelines § 3E1.1(a). The
district court concluded that Barboza-Maldonado was not entitled to such a
reduction. Barboza-Maldonado has not demonstrated that his interpretation of
the plea agreement was reasonable, see Lewis, 476 F.3d at 387-88; thus, he has
not shown plain error with respect to his claim that the Government breached
the plea agreement. See Puckett, 129 S. Ct. at 1429.
      The plea agreement contained a provision wherein Barboza-Maldonado
waived the right to challenge his guilty plea or the sentence imposed, either on
direct appeal or on collateral review, except where he alleged prosecutorial
misconduct or ineffective assistance of counsel. The record reveals that Barboza-
Maldonado knowingly and voluntarily waived his right to appeal; therefore, he
cannot challenge the district court’s denial of a reduction for acceptance of
responsibility unless he can demonstrate that the Government breached the plea
agreement. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (citing
United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir. 2005)); United States
v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).
      The record further reveals that the Government complied with all of its
obligations under the plea agreement by not bringing any additional criminal
charges, not contesting Barboza-Maldonado’s eligibility for an acceptance of
responsibility reduction, and by moving for dismissal of any remaining counts
of the indictment. Accordingly, because Barboza-Maldonado’s sentencing issue
is barred by a valid appeal waiver provision, we decline to address the merits of
his argument. See United States v. Sanchez Guerrero, 546 F.3d 328, 335 (5th
Cir. 2008); Bond, 414 F.3d at 546.
      AFFIRMED.



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