     Case: 10-40111 Document: 00511336541 Page: 1 Date Filed: 12/30/2010




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

                                                 FILED
                                                                         December 30, 2010
                                     No. 10-40111
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

RUBEN DE LEON, JR.,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:04-CR-317-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Ruben De Leon, Jr., appeals the 97-month prison sentence imposed for
possession with intent to distribute more than 100 kilograms of marijuana.
Although he pleaded guilty in 2004, De Leon was not sentenced until 2009
because he failed to appear for his sentencing hearing and remained a fugitive
for several years. He argues that the Government breached the plea agreement
by failing to recommend a reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-40111 Document: 00511336541 Page: 2 Date Filed: 12/30/2010

                                   No. 10-40111

      We review for plain error his “forfeited claim . . . that the Government
failed to meet its obligations under a plea agreement.” Puckett v. United States,
129 S. Ct. 1423, 1428 (2009). To show plain error, De Leon must show a forfeited
error that is clear or obvious and that affects his substantial rights. Id. at 1429.
If he 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.
      It is not clear or obvious that the Government breached the plea
agreement given that the agreement states that “[i]f the defendant should fail
in any way to fulfill completely all of the obligations under this plea agreement,
. . . [t]he United States will be permitted to recommend to the Court any
sentence it considers appropriate, up to and including the maximum possible
sentence.” In addition, the district court stated at the sentencing hearing that
it would not grant De Leon a reduction for acceptance of responsibility because,
rather than taking responsibility for his crime, he failed to appear for his
sentencing hearing and remained a fugitive for nearly five years. This was
consistent with the Guidelines commentary, especially given that the district
court applied an offense level enhancement for obstruction of justice pursuant
to U.S.S.G. § 3C1.1. See U.S.S.G. § 3E1.1, cmt. nn.3-4.
      AFFIRMED.




                                          2
