          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
                                No. 06-40948
                                                                  September 19, 2007
                              Summary Calendar
                                                                Charles R. Fulbruge III
                                                                        Clerk
UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ARIEL R RIVERA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                        USDC No. 5:05-CR-1858-ALL


Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Ariel R. Rivera was indicted on two counts of violating 8 U.S.C. § 1324 by
transporting an alien by motor vehicle for commercial advantage or private
financial gain. He pleaded guilty to one count pursuant to a written plea
agreement in which the Government agreed, based on facts known to it at the
time of the plea bargain, to move that he be given three credits for acceptance
of responsibility under U.S.S.G. § 3E1.1. The district court refused to award him
any credits under § 3E1.1 because he had violated the terms of his pretrial

      *
      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should not be published and is not precedent except under the limited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. 06-40948

release by not appearing for his first sentencing hearing. Rivera filed this
appeal, contending that his failure to get the credits resulted from the
Government’s breaching the plea agreement.
      Whether the Government breached a plea agreement is a legal question
reviewed de novo. United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).
Rivera has the burden of proving, by a preponderance of the evidence, facts that
establish a breach. United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994).
Because Rivera made no objections concerning his plea at sentencing, we review
for plain error. See United States v. Branam, 231 F.3d 931, 933 (5th Cir.2000).
The Government’s failure to fulfill its part of a plea bargain can constitute plain
error regardless of whether the sentencing judge was influenced by the
Government’s action. United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).
      In determining whether the Government fulfilled its promises, we must
decide whether the Government’s conduct “is consistent with what is reasonably
understood by the defendant when entering a plea of guilty.” United States v.
Huddleston, 929 F.2d 1030, 1032 (5th Cir. 1991). Applying this test to the
Government’s first promise, to move for the two-level decrease, it was
unreasonable for Rivera, who was re-arrested between arraignment and
sentencing, to expect that the Government would do more than advise the
district court that it recommended that decrease. The Government effectively
did that (a) by not objecting to the inclusion in the presentence report of the
recommendation for the decrease and (b) by not renouncing that
recommendation at sentencing. The district court was aware, based on the
presentence report, that the Government did not object to Rivera’s getting the
credit. Compare United States v. Saling, 205 F.3d 764, 767 (5th Cir. 2000) (court
advised of Government’s position by way of presentence report); United States
v. Reeves, 255 F. 3d 208, 209-10 (5th Cir. 2001) (holding, on plain-error review,
that inclusion of plea-agreement stipulation as recommendation in presentence
report satisfied terms of plea agreement).

                                        2
                                 No. 06-40948

      Additionally, the Government did not breach its promise to move for the
additional one-level decrease. Rivera had rendered himself ineligible for that
credit when the district court denied him the two-level decrease because he had
failed to appear at his first sentencing hearing, for which he was arrested.
Because the district court’s refusal to award the two-level adjustment made
Rivera ineligible for the additional one-level adjustment, the Government was
under no obligation to move for it. In deciding whether Rivera had accepted
responsibility, the district court properly considered his failure to comply with
the conditions of his bond. See United States v. Hooten, 942 F.2d 878, 882-83
(5th Cir. 1991) (finding defendant’s actions to be inconsistent with acceptance
of responsibility).
      Rivera has failed to show a breach of either of the Government’s promises.
Consequently, the district court’s decision is AFFIRMED.




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