                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             December 28, 2006
                             No. 06-11111                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 05-00389-CR-1-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

OSCAR MINUTI-BARRIENTOS,
a.k.a. David Camacho,
a.k.a. Mauricio Leon,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                          (December 28, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:
      Oscar Minuti-Barrientos (“Minuti”) appeals his conviction and 120-month

sentence for illegal reentry into the United States after deportation, in violation of

8 U.S.C. § 1326 (a) and (b)(2). On appeal, Minuti argues that the government

breached its plea agreement by recommending a sentence at the sentencing

hearing, and, therefore, we should remand this case for resentencing before a

different judge. Minuti contends, without discussion, that the appropriate standard

of review is de novo.

      Generally, the issue of whether the government breached a plea agreement is

a question of law reviewed de novo. United States v. Mahique, 150 F.3d 1330,

1332 (11th Cir. 1998). However, if “the district court affords a defendant an

opportunity to object after the imposition of sentence, and he fails to do so, any

objections to the sentence are barred absent manifest injustice. [We] equate [] the

manifest injustice inquiry with review for plain error.” Id. Under plain error

review, there must be (1) an error, (2) that is plain, and (3) that affects substantial

rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005). If these

three prongs are met, we may exercise discretion to notice this error if it “seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at

1329. For an error to affect substantial rights, “in most cases it means that the error

must have been prejudicial: It must have affected the outcome of the district court



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proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1778,

123 L. Ed. 2d 508 (1993).

      When the government breaches a plea agreement, a defendant is to be

afforded two available remedies: (1) specific performance of the government’s

promise; or (2) the withdrawal of his guilty plea. See Santobello v. New York, 404

U.S. 257, 262-63, 92 S. Ct. 495, 499 (1971). The choice of remedy is within the

court’s discretion. See United States v. Williams, 169 Fed. Appx. 548, 554 (11th

Cir. 2006) (unpublished).

      Although it is clear from the record that the government breached the plea

agreement during the sentencing hearing, Minuti failed to properly preserve the

issue. Minuti did not request the district court to afford him either available

remedy. Instead, he told the court that he wished to proceed with the sentencing

hearing. Because Minuti opted to proceed with sentencing, and because the district

court made a specific finding that the government’s comments were not going to

affect her decision concerning Minuti’s sentence, we conclude there is no plain

error. See United States v. Forney, 9 F.3d 1492, 1503-04 (11th Cir. 1993)

(refusing to find plain error where the defendant did not preserve objection, and

there was no effect on the defendant’s sentence).

      Accordingly, we affirm Minuti’s conviction and sentence.

      AFFIRMED.


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