                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    May 15, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-10540
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FRANCISCO OLISCES PEREZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:03-CR-250-2
                      --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Francisco Olisces Perez pleaded guilty to count 2 of an

indictment charging him with receipt and possession of an

unregistered firearm and aiding and abetting.    Perez was

sentenced to an 80-month term of imprisonment and to a three-year

period of supervised release.    Perez was also fined $2,000.

     Perez contends that the district court’s classification of

him as a “prohibited person,” in determining his offense level

under U.S.S.G. § 2K2.1(a)(4)(B), was based improperly on


     *
       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this opinion should not be published and is not precedent except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. 05-10540
                                 -2-

admissions made to the probation officer during a presentence

interview in violation of Perez’s plea agreement with the

Government.   Our review is for plain error.     See United States v.

Munoz, 408 F.3d 222, 226 (5th Cir. 2005).

     The Government did not agree expressly that the guidelines

sentence should be calculated in a particular manner; nor did it

agree expressly that admissions made pursuant to the cooperation

agreement could not be used against him.      Perez’s contention that

there was an implicit understanding is without merit.      Perez

acknowledged that he would be sentenced pursuant to the

Sentencing Guidelines and that his guideline range could not be

predicted until after the pre-sentence investigation was

completed.    Unlike United States v. Marsh, 963 F.2d 72, 74 (5th

Cir. 1992), and United States v. Kinsey, 917 F.2d 181, 184 (5th

Cir. 1990), cited by Perez, the Government does not concede in

this case that it had agreed that Perez’s cooperation agreement

would be governed by U.S.S.G. § 1B1.8(a).      Perez could not

reasonably have believed that the Government’s promise not to

bring additional charges implicitly barred the use, in

determining his sentence, of inculpatory admissions during his

interview with the probation officer.      Therefore, Perez cannot

show that the plea agreement rested in any significant degree on

a promise or agreement of the prosecutor or that the Government’s

conduct was inconsistent with Perez’s reasonable understanding of

the agreement.    See Munoz, 408 F.3d at 226.
                               No. 05-10540
                                    -3-

     Even assuming clear and obvious error, Perez cannot show

that the error seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.      Under § 2K2.1,

comment. (n.3), the term “‘prohibited person’ means any person

described in 18 U.S.C. § 922(g) . . . .”      Under § 922(g)(3), it

is unlawful for a person “who is an unlawful user of or addicted

to any controlled substance” to ship or transport, possess, or

receive a firearm or ammunition that has been shipped or

transported in interstate or foreign commerce.       See United States

v. Bennett, 329 F.3d 769, 776–77 & n.4 (10th Cir. 2003) (drug use

must be contemporaneous but need not be simultaneous with

offense); United States v. Nevarez, 251 F.3d 28, 30 (2d Cir.

2001) (evidence of persistent drug problem sufficient).       Evidence

in the record of Perez’s long-term marijuana use provides an

ample basis for the court to determine that Perez’s marijuana use

was contemporaneous with the offense, regardless of the disputed

admissions evidence.       See Miller, 406 F.3d at 335.   Accordingly,

Perez cannot show that the district court committed reversible

plain error.     See id.

     AFFIRMED.
