     Case: 14-20327      Document: 00513155239         Page: 1    Date Filed: 08/14/2015




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

                                                                                   FILED
                                                                               August 14, 2015
                                      No. 14-20327
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO ROSALES,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:11-CR-536-1


Before REAVLEY, PRADO, and COSTA, Circuit Judges.
PER CURIAM: *
       Pedro Rosales pleaded guilty to distribution of child pornography. He
was sentenced to 232 months in prison and five years of supervised release.
He argues on appeal that by advocating for an obstruction of justice
enhancement, the Government breached the plea agreement wherein it had
agreed not to oppose a reduction for acceptance of responsibility.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20327

                           STANDARD OF REVIEW
      Typically, this court reviews an assertion that the Government breached
the plea agreement de novo. United States v. Munoz, 408 F.3d 222, 226 (5th
Cir. 2005). However, because Rosales did not object in the district court to the
Government’s alleged breach, review is for plain error. Id.; see Puckett v.
United States, 556 U.S. 129, 135-36 (2009). To establish plain error, Rosales
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett, 556 U.S. at 135. If he makes such a showing, this
court has the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
                                 DISCUSSION
      In assessing whether a plea agreement was breached, this Court
“appl[ies] general principles of contract law, construing the terms strictly
against the government as drafter, to determine ‘whether the government’s
conduct is consistent with the defendant’s reasonable understanding of the
agreement.’” United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012)
(quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)). “[T]he
Government must strictly adhere to the terms and conditions of its promises
in the agreement.” Munoz, 408 F.3d at 226.
      Thus, the issue here is whether the Government’s support of the
obstruction of justice enhancement was inconsistent with Rosales’ reasonable
understanding that the Government would not oppose his request for an
acceptance of responsibility reduction. The Second Circuit spoke strongly on
this issue when it rejected defendant’s argument that “the relationship
between obstruction of justice and acceptance of responsibility is so close that
the government’s promise not to oppose a reduction for acceptance of
responsibility should bar it from supporting an increase of sentence for



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                                  No. 14-20327

obstruction of justice.” United States v. Enriquez, 42 F.3d 769, 772 (2d Cir.
1994). The court explained:
      There is unquestionably a strong relationship between the two
      issues, but in certain cases they may be subject to different
      considerations, making it appropriate for the court to assess both
      the enhancement and the reduction. As the most obvious example,
      a defendant may have engaged in conduct constituting an
      obstruction for which a penalty enhancement is appropriate, but
      subsequently come to accept responsibility fully—for the
      obstruction as well as the crime of conviction. Although in certain
      cases, a government concession on the one issue may be
      incompatible with an application for an enhancement on the other,
      we see no reason why this should be a general rule.
Id. at 773 (internal citations omitted).
      This issue of alleged breach on the same grounds herein was presented
for plain error review by this court in United States v. Hinojosa, 749 F.3d 407
(5th Cir. 2014). The Hinojosa court also concluded that the Government’s
agreement not to oppose acceptance of responsibility did not prohibit it from
advocating for other relevant conduct. See id. at 413 (court “cannot conclude
that Hinojosa’s ‘reasonable understanding of the agreement’ would include a
term prohibiting the government for advocating for the inclusion of relevant
conduct under the Guidelines.”). However, Hinojosa provided no guidance on
whether the plea agreement in that instance was breached, reasoning that it
was unnecessary to determine clear or obvious error if plain error’s third prong
– whether defendant’s substantial rights were affected – could not be satisfied.
Id. at 414.
      The instant case is factually distinguished from Hinojosa in that the
Government here: (1) did not promise to “recommend” the acceptance of
responsibility reduction, only promised “not to oppose” it; and (2) did not
advocate against the acceptance of responsibility reduction, but only for the
obstruction of justice enhancement. The factual distinctions, coupled with the


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                                  No. 14-20327

Government’s silence at sentencing on the acceptance of responsibility issue,
seem to require a different analysis from Hinojosa – whether there was indeed
clear or obvious error. A showing of clear or obvious error requires that the
error not be subject to reasonable dispute. Puckett, 556 U.S. at 135. In this
case, however, the alleged breach may be reasonably disputed for the following
reasons.
      First, it is undisputed that the Government knew of the circumstances
surrounding the obstruction enhancement when it agreed not to oppose
acceptance of responsibility.       While this may have been proper, the
Government’s silence at sentencing about its position on the acceptance of
responsibility matter may be perceived as impermissibly effecting an “end-run”
around the plea agreement by complying with its express terms while taking
actions inconsistent with those same terms. See United States v. Badaracco,
954 F.2d 928, 941 (3d Cir. 1992).
      Also, neither party attempted to correct the district court’s apparent
misunderstanding that an obstruction of justice enhancement eliminates any
possibility of acceptance of responsibility. The Guidelines state that: “[c]onduct
resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct.       There may, however, be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S.S.G. § 3E1.1, cmt. n.4 (emphasis added). It is clear that Rosales’
counsel had a responsibility to inform the court of the apparent
misunderstanding      and   to   argue       any   extraordinary   circumstances.
Nonetheless, we believe the Government should have made the district court
aware of its position in the plea agreement and of the district court’s ability to
apply both adjustments in special cases.



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                                 No. 14-20327

                               CONCLUSION
      For the reasons stated above, we cannot fully approve of the
Government’s position but any error is not clear or obvious. Accordingly, the
claim fails under plain error review.
      AFFIRMED.




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