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

                                                FILED
                                                                October 7, 2009
                               No. 08-10820
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

TIMOTHY JAMES HOBBS,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:07-CR-237-2


Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Timothy James Hobbs appeals the 60-month concurrent sentences
imposed following his guilty plea conviction for conspiracy to counterfeit,
possess, and pass United States currency, and possession of a firearm by a
convicted felon. Hobbs argues that the Government repudiated and breached
the plea agreement, wherein it recommended that the district court impose a
sentence at the lower end of the applicable guidelines range of imprisonment,



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-10820

which the court determined to be 51 to 63 months. He requests that we vacate
his sentence and remand for resentencing before a different district judge.
      Because Hobbs did not sufficiently apprise the district court of his claim
that the Government breached the plea agreement, review is limited to plain
error. See Puckett v. United States, 129 S. Ct. 1423, 1428-33 (2009). To show
plain error, the appellant must show a forfeited error that is clear or obvious and
that affects his substantial rights. Id. at 1429. If the appellant makes such a
showing, this court has the discretion to correct the error but only if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
      Hobbs has not demonstrated that his sentence is the result of any plain
error. Even if it is assumed that Hobbs could establish that the Government
breached the plea agreement (which we do not decide), he has not satisfied the
third prong, i.e., that any alleged error affected his substantial rights.        At
sentencing, the district court ruled that it would not accept the Government’s
recommendation for a sentence at the lower end of the guidelines range, and the
court made it clear that it had no intention of sentencing Hobbs at the lower end.
Additionally, the district court indicated that it had considered upwardly
departing from the guidelines range because Hobbs was not totally
straightforward when he testified at the sentencing hearing. Hobbs has not
shown that he was prejudiced by the Government’s alleged breach and,
therefore, has not shown plain error.
      Accordingly, the judgment of the district court is AFFIRMED.




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