     Case: 11-40697     Document: 00511895770         Page: 1     Date Filed: 06/21/2012




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

                                                                            FILED
                                                                           June 21, 2012
                                     No. 11-40697
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JAVIER HUGO PEREZ, also known as El Vecino,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:09-CR-2897-8


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Javier Hugo Perez appeals following his convictions of one count of
conspiring to possess with intent to distribute in excess of 1,000 kilograms of
marijuana and one count of conspiring to commit money laundering. The above
charges were, respectively, Count One and Count Seven of a superseding
indictment, to which Perez pleaded guilty pursuant to an agreement. He argues
on appeal that he is entitled to withdraw his guilty pleas because the
Government breached the plea agreement by failing to move for the dismissal

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40697      Document: 00511895770    Page: 2   Date Filed: 06/21/2012

                                  No. 11-40697

of Count Seven at sentencing. The Government contends Perez is entitled to no
relief because the record as a whole establishes that the parties understood that
Perez would plead guilty to, and be sentenced on, both Count One and Count
Seven.
      Generally, the issue whether the Government’s conduct violated the terms
of a plea agreement is a question of law, which we review de novo. See United
States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000). However, where, as here, a
defendant does not argue before the district court that the Government has
breached the plea agreement, the issue is reviewed only for plain error. See
Puckett v. United States, 556 U.S. 129, 133-34 (2009). To show plain error, an
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. See id. at 135. If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      In determining whether the Government has breached a plea agreement,
we examine whether the Government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.             United States v.
Pizzolato, 655 F.3d 403, 409 (5th Cir. 2011), cert. denied, 132 S. Ct. 1126 (2012).
Perez has the burden of establishing the facts showing a breach. Id. at 409.
Perez’s appeal waiver does not bar him from raising on appeal the issue of
breach of the plea agreement. See United States v. Branam, 231 F.3d 931, 931
n.1 (5th Cir. 2000).
      As the Supreme Court discussed in Puckett, “the second prong of
plain-error review . . . will often have some ‘bite’ in plea-agreement cases.”
Puckett, 556 U.S. at 143. Under the second prong, “the legal error must be clear
or obvious, rather than subject to reasonable dispute.” Puckett, 556 U.S. at 135.
“Not all breaches will be clear or obvious. Plea agreements are not always
models of draftsmanship, so the scope of the Government’s commitments will on
occasion be open to doubt.” Id. at 143.

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                                  No. 11-40697

      The first paragraph of the plea agreement indicates Perez’s agreement to
plead guilty to both Count One and Count Seven of the superseding indictment.
Within its factual basis section, the plea agreement states in Paragraph 17 that
Perez “is pleading guilty because he/she is guilty of the charge contained in
Count One and Count Seven of the Superseding Indictment.”                Yet, the
agreement, without mentioning a guilty plea to Count Seven, provides in
Paragraph 13(a) that, if Perez “pleads guilty to Count One of the superseding
indictment and persists in that plea through sentencing, and if the Court accepts
this plea agreement, the United States will move to dismiss any remaining
counts of the superseding indictment at the time of sentencing.” It is difficult to
reconcile Paragraph 1 and Paragraph 17 with Paragraph 13(a), and it is thus
debatable whether the agreement requires the Government to move for the
dismissal of Count Seven.
      Given the lack of clarity as to the Government’s obligation, it is not “clear
or obvious” that the Government’s failure to move for the dismissal of Count
Seven at sentencing constitutes a breach of the agreement; rather, the matter
is “subject to reasonable dispute.” See Puckett, 556 U.S. at 135. In view of the
foregoing, Perez has not met his burden to establish an entitlement to relief
under the applicable plain error standard. See id. at 135, 143.
      AFFIRMED.




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