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

                                                                FILED
                                                               August 13, 2008
                                No. 07-40582
                                                          Charles R. Fulbruge III
                                                                  Clerk
UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

CHRISTOPHER CONTRERAS

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Eastern District of Texas
                          USDC No. 6:06-CR-42-2


Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
     Christopher Contreras appeals following his guilty plea conviction and
120-month sentence for conspiring to possess with intent to distribute
methamphetamine. Contreras argues that the Government breached his plea
agreement at the sentencing hearing by opposing his motion for a downward
departure pursuant to 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2—the so-called
“safety valve”—on, inter alia, grounds that he possessed a firearm during the
commission of the offense. He contends that the Government was precluded


     *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-40582

from making such an argument based on this stipulation in the plea agreement:
“The adjustment of U.S.S.G. § 2D1.1(b)(1) does not apply because there is
insufficient evidence that a dangerous weapon was possessed during the
commission of the offense.” The district court denied his motion for the safety
valve departure.
      Whether the Government has violated a plea agreement is a question of
law subject to de novo review. United States v. Wittie, 25 F.3d 250, 262 (5th Cir.
1994). When analyzing a claim that a plea agreement has been breached, the
reviewing court should consider whether the Government’s actions are
consistent “with the parties’ reasonable understanding of the agreement.”
United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).
      The critical question is what the parties agreed to. The plea agreement
contained no understanding with respect to Contreras’ request for a downward
departure under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2; rather, it spoke only
to U.S.S.G. § 2D1.1(b)(1). The record makes clear that at the time of sentencing,
the applicability of the safety valve was an open question.        The weapons
enhancement and the safety valve are separate issues, and what the
Government agreed to do was not to attempt to prove the weapons enhancement.
The Government’s agreement not to seek the weapons enhancement did not
relieve Contreras from his burden of proving that there was no weapon. See
United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006) (noting that the
defendant “has the burden of showing that he is entitled to the safety-valve
adjustment”). While the Government stated that it lacked sufficient evidence to
seek the enhancement, it does not follow that the Government had no evidence
of a weapon. The Government’s concession that it did not have enough evidence
to prove the presence of the weapon is neither a concession that Defendant did
not have a weapon nor a concession that he can prove its absence.
      Further, the stipulations paragraph in the plea agreement specifically
provided that nothing in the plea agreement would preclude argument by either

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party regarding any other specific offense characteristic or guideline adjustment.
Contreras has not shown that the Government violated the plea agreement. See
Price, 95 F.3d at 367; Wittie, 25 F.3d at 262.
      Contreras also argues that the district court erred in denying his motion
for a downward departure and that the district court plainly erred in failing to
grant a two-level reduction in his offense level pursuant to § 2D1.1(b)(9).
Contreras’ appeal of these issues is barred by the waiver-of-appeal provision in
his plea agreement. See United States v. Bond, 414 F.3d 542, 544 (5th Cir.
2005); FED. R. CRIM. P. 11(b)(1)(N).
      AFFIRMED.




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