                       REVISED MAY 16, 2017

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fif h Circuit
                                   No. 15-60773                      FILED
                                                               March 30, 2017
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                     Clerk

            Plaintiff - Appellee

v.

ADAN CASILLAS,

            Defendant - Appellant




               Appeal from the United States District Court
                 for the Southern District of Mississippi


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
     Pursuant to a written plea agreement, Adan Casillas pled guilty to
possession with intent to distribute more than 50 grams of actual
methamphetamine. For the first time on appeal, Casillas argues that the
Government breached the plea agreement when it recommended a role
reduction but subsequently put on argument and supporting evidence that
undermined that recommendation. The Government moves to dismiss the
appeal or, alternatively, for summary affirmance based on the appeal waiver
                                  No. 15-60773
provision in the plea agreement. Casillas contends that the appeal waiver is
unenforceable because of the Government’s alleged breach.
      Whether a plea agreement was breached is analyzed under “general
principles of contract law”; we must “constru[e] the terms strictly against the
[G]overnment as [the] drafter . . . .” United States v. Hebron, 684 F.3d 554, 558
(5th Cir. 2012). A breach occurs “when the Government agrees to one thing at
the plea but then actively advocates for something different at sentencing.”
United States v. Loza-Gracia, 670 F.3d 639, 644 (5th Cir. 2012). Casillas has
the burden of demonstrating a breach by a preponderance of the evidence. See
United States v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).
      Casillas did not raise the breach issue in the district court. Our review
is thus for plain error. United States v. Brown, 328 F.3d 787, 789 (5th Cir.
2003). Under plain-error review, a defendant must show (1) error, (2) that is
clear or obvious, and (3) that affected the defendant’s substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If those requirements are
met, we may exercise discretion to remedy the error only if it (4) “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(quotation marks and alteration omitted).
      Even when the plea agreement includes a waiver of the right to an
appeal, as it did here, a defendant may appeal to claim a breach of a plea
agreement. See Roberts, 624 F.3d at 244. A breach occurs if the Government’s
conduct was inconsistent with a reasonable understanding of its obligations.
See United States v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014). We start with
determining just what the Government agreed to do.
      The transcript from the sentencing hearing reveals that counsel for the
Government confirmed he was recommending a role reduction based on the
information the Government knew at the time about Casillas’s role in the drug-
trafficking organization. Counsel also said the Government learned more
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information about the depth of Casillas’s involvement, but “all of that was
learned post my recommendation” and he was sticking to the recommendation
for a role reduction.
      We quote the Assistant United States Attorney to make clearer what was
said at the sentencing hearing: “We made a negotiated settlement based on
what we knew at the time, and that’s what we do. And sometimes other
information comes in later that calls that into question, and we have to live
with the agreements that we’ve made. And so we do here also.” Twice more,
the Government reiterated its role-reduction recommendation. Specifically,
the AUSA informed the district court that the Government left the
recommendation “as simply a role reduction,” and he later acknowledged that
the Government did stipulate to a role reduction and reinforced that it “stick[s]
by that recommendation.”
      The record indicates that the Government complied with its literal
obligations under the plea agreement to make certain statements to the court.
The crux of Casillas’s argument, which is subject to our plain-error review, is
that the Government breached the plea agreement — despite articulating its
agreed-to recommendation — by destroying the utility of the recommendation
through the presentation of evidence and testimony that effectively showed
Casillas was not actually entitled to a safety-valve reduction.
      We disagree. The Government does not breach a plea agreement by
disclosing pertinent factual information to a sentencing court.        The plea
agreement did not contain any provisions restricting such disclosure. Indeed,
“the Government does not have a right to make an agreement to stand mute
in the face of factual inaccuracies or to withhold relevant factual information
from the court.” United States v. Block, 660 F.2d 1086, 1092 (5th Cir. Unit B
Nov. 1981). The Casillas plea agreement supported this disclosure obligation
by expressly permitting the Government to advise the district court of “the
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nature and extent of [Casillas’s] activities with respect to this case and all other
activities of [Casillas] which the U.S. Attorney deems relevant to sentencing[.]”
The Government recommended a role reduction and informed the court of the
additional relevant information.
      Casillas asserts that the Government breached the plea agreement when
it “begrudgingly informed” the district court of its recommendation. Absent
some provision in the plea agreement, there is no level of enthusiasm the
Government must display when making a recommendation. See United States
v. Benchimol, 471 U.S. 453, 455 (1985).           We will say, though, that the
Government must continue to advocate for acceptance of the agreement. Here,
the Government had to balance its duty of disclosure with its agreement to
recommend a particular sentence. We find the Government satisfied both
obligations.
       One of our precedents that might seem to require something more was
discussed in Benchimol; the Supreme Court, though, expressly recognized that
our decision involved an expression of “personal reservations” by the
Government’s attorneys. Id. at 456 (discussing United States v. Grandinetti,
564 F.2d 723 (5th Cir. 1977)). Grandinetti is also poor support for Casillas both
because it predates the Sentencing Reform Act of 1984 and because its review
was not for plain error.
      There was no error here.
      The appeal is DISMISSED.




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