     Case: 10-51167     Document: 00511712852         Page: 1     Date Filed: 01/04/2012




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

                                                                            FILED
                                                                          January 4, 2012
                                     No. 10-51167
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALFREDO AGUIRRE, also known as Freddy,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1267-3


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Alfredo Aguirre pleaded guilty pursuant to a written plea agreement to
one count of conspiracy to possess with intent to distribute more than 500 grams
of cocaine. The district court sentenced him at the top of the advisory guideline
range to 235 months of imprisonment. He now appeals his conviction and
sentence.
        Aguirre challenges the adequacy of the factual basis for his guilty plea.
The provision in Aguirre’s plea agreement waiving the right to appeal his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-51167

sentence does not apply to this claim, which pertains instead to the validity of
his conviction. United States v. Palmer, 456 F.3d 484, 488-89 (5th Cir. 2006).
Because he did not object in the district court, we review this claim for plain
error. United States v. Marek, 238 F.3d 310, 314-15 (5th Cir. 2001) (en banc).
      To show plain error, Aguirre must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Aguirre admitted in writing and in open court to the accuracy of facts that
supported his guilty plea. See United States v. Morris, 46 F.3d 410, 414-15 (5th
Cir. 1995). He relies on statements by this court that a buyer-seller relationship,
without more, will not prove a conspiracy, see, e.g., United States v. Maseratti,
1 F.3d 330, 336 (5th Cir. 1993), but Aguirre admitted to planning and
coordinating the sale of cocaine not only with a buyer but with at least three
others on the same “seller” side of the transaction.
      We also review for plain error Aguirre’s claim that the Government
breached the plea agreement by violating its promise not to oppose an
adjustment for acceptance of responsibility.        Puckett, 129 S. Ct. at 1428.
Although the plea agreement included a waiver of Aguirre’s right to appeal his
sentence, an appeal waiver is unenforceable if the Government breaches a plea
agreement. United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). The
Government did not breach the plea agreement by arguing for a sentence at the
top of the guideline range because it based this argument on the district court’s
denial of an aggravating role adjustment.          This was consistent with the
Government’s reservation in the plea agreement of its right to dispute
sentencing factors, see United Stats v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999),
and aggravating role adjustments do not affect eligibility for an adjustment for
acceptance of responsibility.

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                                   No. 10-51167

      We need not decide whether the Government’s request for an obstruction
of justice adjustment constituted a clear or obvious breach of the plea agreement
because Aguirre cannot satisfy the remaining prongs of the plain error standard.
The Government had the right under the plea agreement to inform the district
court of the Aguirre’s false statements. See also United States v. Block, 660 F.2d
1086, 1091-92 (5th Cir. Unit B. Nov. 1981). Such false statements can warrant
the application of the obstruction of justice adjustment under U.S.S.G. § 3C1.1
and the denial of a reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. Therefore, Aguirre cannot show an affect on his substantial rights. See
Puckett, 129 S. Ct. at 1433 n.4. Moreover, in light of Aguirre’s false statements,
he cannot show that the district court’s denial of a reduction for acceptance of
responsibility seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See Puckett, 129 S. Ct. at 1429-33.
      Aguirre also raises other sentencing claims. We need not resolve whether
the Government breached the plea agreement because Aguirre’s remaining
claims lack merit. See Gonzalez, 309 F.3d at 886; see also United States v. Story,
439 F.3d 226, 230-31 (5th Cir. 2006) (holding that appeal waivers are not
jurisdictional).
      Aguirre challenges the district court’s finding that he obstructed justice
under § 3C1.1. He argues that his false statements did not significantly obstruct
or impede the official investigation or prosecution of the instant offense.
Because Aguirre’s argument raises a factual dispute that the district could have
resolved had he objected, there can be no plain error. See United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991).
      In addition, we review for plain error Aguirre’s claim that the district
judge improperly based his sentence on ex parte information obtained from the
judge’s review of the Government’s earlier applications for wiretaps. See United
States v. Roberts, 913 F.2d 211, 216 & n.3 (5th Cir. 1990).         Because the
presentence report (PSR) included a summary of the information obtained from

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                                  No. 10-51167

the wiretap reports, Aguirre cannot show “a reasonable probability that, but for
the district court’s error, the appellant would have received a lower sentence.”
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010).
      Although Aguirre argues that the district court committed clear error in
finding that evidence supported the quantity of drugs attributed to him by the
PSR, he did not present evidence to rebut the PSR or the testimony of the
Government’s witnesses. A district court may rely on the information in a PSR
in the absence of rebuttal evidence. United States v. Ollison, 555 F.3d 152, 164
(5th Cir. 2009). “Mere objections do not suffice as competent rebuttal evidence.”
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
      Aguirre also argues that the district court violated his constitutional rights
under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington,
542 U.S. 296 (2004), by considering facts outside those admitted as part of his
guilty plea, including his criminal history and the drug quantity determination.
We again review for plain error. See United States v. Rojas-Luna, 522 F.3d 502,
504 (5th Cir. 2002). In United States v. Booker, 543 U.S. 220 (2005), the
Supreme Court remedied the Sixth Amendment error resulting from judicial
factfinding under the Guidelines by excising statutory provisions making the
Guidelines mandatory and rendering them advisory only. United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005). Under this advisory sentencing
regime, a district court is free to find all facts relevant to sentencing by a
preponderance of the evidence. United States v. Whitfield, 590 F.3d 325, 367
(5th Cir. 2009), cert. denied, 131 S.Ct. 136 (2010). There is no Apprendi defect
in Aguirre’s sentence because his 235-month sentence did not exceed the
statutory maximum term of 40 years of imprisonment for an offense involving
500 grams or more of cocaine. 21 U.S.C. § 841(b)(1)(B)(ii).
      AFFIRMED.




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