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

                                                                 FILED
                                                                 April 28, 2008
                               No. 07-40661
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

DELVIN DEMON MOORE, also known as Boo Man

                                           Defendant-Appellant


                 Appeals from the United States District Court
                      for the Southern District of Texas
                           USDC No. 2:05-CR-542-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Delvin Demon Moore appeals his guilty plea
conviction and sentence for conspiracy to possess with intent to distribute five
kilograms or more of cocaine. Moore argues that the district court rejected his
plea agreement by not awarding him credit for acceptance of responsibility even
though the government agreed in the plea agreement to recommend that he
receive such credit. Because the plea agreement also contained an agreement
that the government would dismiss the remaining charges against him, he

      *
      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should not be published and is not precedent except under the limited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. 07-40661

maintains that the district court’s alleged rejection of the plea agreement was
erroneous under FED. R. CRIM. P. 11(c)(5). He additionally asserts that the
district court should have allowed him to withdraw his guilty plea because the
government breached the plea agreement by not recommending that he receive
credit for acceptance of responsibility. The government argues that Moore’s
appeal is barred by the appeal waiver in the plea agreement.
      Although a defendant may validly waive his right to appeal, see United
States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992), the claims raised by Moore
in this appeal are not barred by his appeal waiver. If, as Moore insists, the
district court rejected the plea agreement, the appeal waiver would not be
enforceable.    See United States v. Keresztury, 293 F.3d 750, 756-57
(5th Cir. 2002). An appeal waiver also does not prevent us from considering
claims that the government breached a plea agreement. Id.; United States v.
Branam, 231 F.3d 931, 931 n.1 (5th Cir. 2000).
      Moore did not argue in the district court that the court rejected the plea
agreement or that the government breached the plea agreement. Accordingly,
we review his claims for plain error. See United States v. Puckett, 505 F.3d 377,
383-86 (5th Cir. 2007), petition for cert. filed (Mar. 3, 2008) (No. 07-9712). To
demonstrate plain error, Moore must show error that was plain and that affected
his substantial rights. See United States v. Reyna, 358 F.3d 344, 350 (5th Cir.
2004). If Moore can meet those criteria, we have “the discretion to correct the
forfeited error but should do so only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citation omitted).
      The portion of the plea agreement in which the government agreed to
recommend that Moore be given credit for acceptance of responsibility was
explicitly made pursuant to FED. R. CRIM. P. 11(c)(1)(B) and was not binding on
the court. The record contains no indication that the district court rejected the



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plea agreement.1 Moore has not shown that the district court committed error,
plain or otherwise, by rejecting the plea agreement and refusing to allow him to
withdraw his guilty plea.
      The government’s agreement to recommend that Moore be given credit for
acceptance of responsibility was explicitly conditioned on Moore’s giving a
truthful debriefing to probation officers and giving truthful testimony at
sentencing. The statements made by Moore during debriefing and the testimony
Moore gave at sentencing were contradicted by five government witnesses at
sentencing. Moore does not challenge the conclusion of the government and the
district court that he committed perjury. As Moore did not perform the condition
required for the government to make the recommendation that he receive credit
for acceptance of responsibility, he has not shown that the government breached
the plea agreement. See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.
2002) (holding that defendant must show that government’s conduct was not
consistent with parties’ reasonable understanding of plea agreement to show
breach). Furthermore, even if the government had breached the plea agreement
by not recommending that Moore receive credit for acceptance of responsibility,
Moore has not shown that this affected his substantial rights. The district court
summarily rejected Moore’s request for credit for acceptance of responsibility on
the basis that Moore had not accepted responsibility, and there is no indication
in the record that a recommendation by the government would have changed
that ruling. Additionally, Moore received an enhancement for obstruction of
justice, and credit for acceptance of responsibility is not normally given if that
enhancement is applied. See U.S.S.G. § 3E1.1, comment. (n.4). Moore has not
shown that he was prejudiced by the government’s failure to recommend that he


      1
       The district court has not yet dismissed the remaining charges against
Moore, but we need not remand this case to that court to do so, as the district
court retains jurisdiction to dismiss those charges. See United States v.
Prudhome, 13 F.3d 147, 150 n.13 (5th Cir. 1994).

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be given credit for acceptance of responsibility and, therefore, has not shown
plain error. See Puckett, 505 F.3d at 386.
      AFFIRMED.




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