     Case: 15-41080      Document: 00513499020         Page: 1    Date Filed: 05/10/2016




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

                                    No. 15-41080
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           May 10, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

ANDRES VILLARREAL-PARADES, true name Andres Villarreal-Paredes,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:14-CR-818


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Andres Villarreal-Parades pleaded guilty to possession with the intent
to distribute 50 grams or more of methamphetamine and 500 grams or more of
a mixture containing methamphetamine. He was sentenced to 168 months of
imprisonment, to be followed by five years of supervised release. His guilty
plea was made pursuant to a plea agreement wherein he waived the right to
appeal his conviction and sentence. In exchange for his plea of guilty, the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41080

Government, in pertinent part, agreed not to seek an enhancement under
U.S.S.G. § 3B1.1 for a role as a leader or organizer.
      On appeal, Villarreal-Parades argues that the Government breached its
plea agreement by advocating at sentencing for application of the § 3B1.1
enhancement. Although Villarreal-Parades waived his right to appeal his
sentence in his plea agreement, “an alleged breach of a plea agreement may be
raised despite a waiver provision.” United States v. Roberts, 624 F.3d 241, 244
(5th Cir. 2010). Though we typically review de novo an alleged breach of a plea
agreement, id. at 245, Villarreal-Parades did not argue in the district court
that the Government breached the plea agreement. Thus, review is for plain
error. See Puckett v. United States, 556 U.S. 129, 135-36 (2009).
      In determining whether the terms of a plea bargain agreement have been
violated, this court must assess whether the Government’s conduct is
consistent with the parties’ reasonable understanding of the agreement.
United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). At sentencing,
the Government offered that Villarreal-Parades’s actions “certainly . . . meet[]
the definition and criteria” for the enhancement.         This statement by the
Government constituted a breach of the plea agreement because the
Government argued, “even if mildly,” in support of the enhancement. United
States v. Roberts, 624 F.3d 241, 248 (5th Cir. 2001).
      However, when the terms of the plea agreement were subsequently
mentioned by defense counsel to the district court, the Government clarified
that, under the terms of the plea agreement, it was not taking a position on
the enhancement; it was neither seeking the enhancement nor recommending
that it not apply. These statements by the Government in clarification cured
the breach. See United States v. Purser, 747 F.3d 284, 293-94 (5th Cir. 2014)
(finding that Government’s withdrawal of argument for an enhancement that



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                                 No. 15-41080

contradicted terms of the plea agreement cured the breach). “Cure, unlike
harmless error, is the removal of legal defect or correction of legal error; that
is, performance of the contract.” Id. at 294. In light of the explicit statements
by the Government that the enhancement was not being sought, Villarreal-
Parades has not shown a clear or obvious error. See Puckett, 556 U.S. at 135;
Purser, 747 F.3d at 293-94.
      Even if Villarreal-Parades could show clear or obvious error, he could not
show an effect on his substantial rights. The district court indicated its intent
to apply the enhancement regardless of the terms of the plea agreement,
stating that it could not pretend that Villarreal-Parades was not a leader or
organizer. Thus, there is not a reasonable probability that his guidelines range
would have been lower or that he would have received a lesser sentence. See
United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).
      The Government argues that Villarreal-Parades’s appeal waiver
should be enforced and his appeal should be dismissed. Because Villarreal-
Parades had the right to raise a claim of a breach of the plea agreement,
and Villarreal-Parades makes no other argument challenging his conviction or
sentence, we do not dismiss the appeal.        See United States v. Pizzolato,
655 F.3d 403, 412 (5th Cir. 2011).
      The judgment of the district court is AFFIRMED.




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