     Case: 10-10561 Document: 00511429181 Page: 1 Date Filed: 03/30/2011




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

                                                 FILED
                                                                           March 30, 2011
                                     No. 10-10561
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RONALD ROCHA DANIELS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 2:06-CR-62-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ronald Rocha Daniels, federal prisoner # 35761-177, appeals from the
district court’s grant of the Government’s motion to reduce his sentence under
Federal Rule of Criminal Procedure 35(b) and the district court’s denial of his
motion for reconsideration. Daniels was originally sentenced to a prison term
of 155 months after he pleaded guilty pursuant to a plea agreement to
possessing with intent to distribute methamphetamine. The Government moved
for the sentencing reduction, recommending that the district court depart

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-10561 Document: 00511429181 Page: 2 Date Filed: 03/30/2011

                                      No. 10-10561

downward by two offense levels.           The district court ultimately decreased
Daniels’s sentence to 130 months, a 25-month reduction. Unhappy with the
extent of the reduction, Daniels unsuccessfully moved to reconsider.
      Daniels explains on appeal that postsentencing, the Government orally
promised that it would recommend “that the judge consider a [sentencing]
reduction of up to 50%.” He argues that the Government breached that oral
agreement when it asked for only a two-level reduction in his offense level and
that the court erred in failing to take into account Daniels’s agreement with the
Government     in    granting   the    reduction     and   denying   his   motion   for
reconsideration.     He also contends that he was entitled to an evidentiary
hearing.
      Daniels’s argument to the district court referred only to the “Plea
Agreement,” which the district court understood to mean the written plea
agreement, and Daniels made no mention of any separate oral agreement.
Because Daniels did not raise the alleged postsentencing oral agreement as
grounds for his motion to reconsider in the district court, he failed to preserve
this issue for review, meaning that our review is for plain error only. See Puckett
v. United States, 129 S. Ct. 1423, 1428-29 (2009).           To succeed under this
standard, Daniels must show an error that is clear or obvious and that affects
his substantial rights, but even so, we generally will exercise our discretion to
correct the error only if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1429 (internal quotation marks and
citation omitted).
      Rule 35(b) permits the Government to move to reduce a defendant’s
sentence under certain circumstances. Though the Government generally is
under no obligation to file a Rule 35(b) motion, it may bargain away its
discretion. United States v. Grant, 493 F.3d 464, 467 (5th Cir. 2007). Once the
Government moves for a reduction in the defendant’s sentence, it is obliged to
provide the court with accurate information about the defendant’s assistance;

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                                  No. 10-10561

however, the district court is not bound by the Government’s recommendation
as to the extent of the departure and instead must exercise its independent
discretion. Id.
      Daniels presented the district court with no allegations, much less any
proof, as to the nature of the Government’s alleged oral promise, who made it,
when it was made, and under what conditions it was made. Though he fills in
certain details by adding new allegations in his brief to this court, he points to
no evidence to support them, and, in any event, we cannot consider facts that
were not presented to the district court. See United States v. Pigno, 922 F.2d
1162, 1168 (5th Cir. 1991). Daniels’s general allegations did not meet his burden
to prove that the Government breached any agreement with him. See United
States v. Price, 95 F.3d 364, 367 (5th Cir. 1996). Accordingly, the district court
did not plainly err by declining to grant a larger sentencing reduction. Nor does
the record show that Daniels presented independent indicia of the likely merits
of his claim warranting an evidentiary hearing. See United States v. Edwards,
442 F.3d 258, 264 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED. Daniels’s motions for
oral argument and for appointment of counsel are DENIED.




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