     Case: 10-41024     Document: 00511654637         Page: 1     Date Filed: 11/03/2011




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

                                                                            FILED
                                                                         November 3, 2011
                                     No. 10-41024
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCOS AVALOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:09-CR-865-3


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Marcos Avalos appeals the sentence imposed
following his plea of guilty pursuant to a plea agreement for possession of more
than 100 kilograms of marijuana with intent to distribute. On appeal, Avalos
asserts for the first time that the government breached its plea agreement with
him by not recommending that he receive full credit for acceptance of
responsibility and that the breach amounted to plain error. Avalos maintains
that the government’s express promise in the plea agreement to recommend that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-41024

he receive such credit included the implicit promise not to seek enhancement for
obstruction of justice because such an enhancement generally precludes a
reduction for acceptance of responsibility. He contends that, at sentencing, the
government adopted the guidelines sentence range calculation set forth in the
presentence report (PSR), which did not include a reduction for acceptance of
responsibility, by recommending a sentence of 108 months of imprisonment,
thereby breaching the provision in the plea agreement requiring it to recommend
that he receive full credit for his acceptance. Avalos asserts that the inclusion
of the plea agreement provision in the PSR did not sufficiently fulfill the
government’s promise to recommend that he receive full credit because the
government urged the opposite at sentencing. He insists that the breach of the
plea agreement was clear and obvious error, that the error affected his
substantial rights, and that the error seriously affected the fairness of his
sentencing. Avalos concludes that he is entitled to specific performance of the
plea agreement and that we should vacate his sentence and remand this case for
resentencing before a different judge.
         Avalos’s appeal waiver does not prevent him from raising his claim that
the government breached the plea agreement. See United States v. Keresztury,
293 F.3d 750, 756-57 (5th Cir. 2002). As Avalos did not raise this claim in the
district court, however, we review it for plain error only. See Puckett v. United
States, 556 U.S. 129, 129 S. Ct. 1423, 1428-33 (2009). To establish plain error,
Avalos must show a forfeited error that is clear or obvious and that affects his
substantial rights. See id. at 1429. If he makes such a showing, we have the
discretion to correct the error, but we shall do so only if such error seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
         The inclusion in the PSR of the government’s recommendation that Avalos
receive full credit for acceptance of responsibility satisfied the government’s
promise to make such a recommendation. See United States v. Reeves, 255 F.3d

                                         2
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                                 No. 10-41024

208, 210 (5th Cir. 2001). The government had a duty at sentencing “to insure
[sic] that the court ha[d] complete and accurate information concerning the
defendant, thereby enabling the court to impose an appropriate sentence.” Id.
at 211 (internal quotation marks and citation omitted). Thus, the government’s
tendering as exhibits the documents obtained by the probation officer was an
“effort to provide relevant factual information” that was not “tantamount to
taking a position on the sentence” and did “not violate the plea agreement.” Id.
(internal quotation marks and citation omitted). Even though the government
did restate the guidelines sentence range found by the probation officer and, as
required by the plea agreement, recommended a sentence at the low end of that
range, this occurred after the district court had already overruled Avalos’s
objection to the enhancement for obstruction of justice and denial of a reduction
for acceptance of responsibility. Therefore, the government’s statement cannot
be interpreted as an attempt to persuade the district court to apply the
enhancement for obstruction of justice and deny a reduction for acceptance of
responsibility. “Considering the absence of any argument by the government
regarding the” application or denial of a reduction for acceptance of
responsibility “or of any express promise in the plea agreement that the
government’s statement plainly violated, the sentence is not plain error.” Id. at
211-12. Avalos’s reliance on United States v. Munoz, 408 F.3d 222 (5th Cir.
2005), United States v. Valencia, 985 F.2d 758 (5th Cir. 1993), and United States
v. Villarreal-Rodriguez, 356 F. App’x 759 (5th Cir. 2009), is misplaced because,
in each of those cases, and unlike in the present case, the government breached
the plea agreement by affirmatively advocating a position contrary to one it had
promised to make in the plea agreement. See Munoz, 408 F.3d at 227; Valencia,
985 F.2d at 760-61; Villarreal-Rodriguez, 356 F. App’x at 761.
      AFFIRMED.




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