     Case: 14-50826      Document: 00512998051         Page: 1    Date Filed: 04/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50826
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 8, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOEL COSTILLA, also known as Sharky,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1661-6


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Joel Costilla pleaded guilty, pursuant to a plea agreement, to conspiracy
to conduct the affairs of an enterprise through a pattern of racketeering and
conspiracy to possess with intent to distribute 100 kilograms of marijuana. He
argues that the Government breached the plea agreement by not advising the
probation officer of any relevant facts that would have demonstrated
acceptance of responsibility on his part. Costilla did not argue in the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50826     Document: 00512998051    Page: 2   Date Filed: 04/08/2015


                                 No. 14-50826

court that the plea agreement was breached and, thus, we review for plain
error. See Puckett v. United States, 556 U.S. 129, 135-36 (2009).
      In exchange for Costilla’s plea, the Government agreed not to challenge
any recommended findings in the Presentence Report (PSR) that Costilla’s
guideline offense be adjusted to reflect his acceptance of responsibility. The
agreement also provided that, if the court found that Costilla was entitled to
the adjustment and that his base offense level before the adjustment was at
least level 16, the Government agreed “to move for the third-level reduction at
the time of sentencing based on the defendant’s timely agreement to plead
guilty[.]”
      Costilla’s argument that the Government had a duty under the plea
agreement to essentially advocate for a reduction for acceptance of
responsibility by providing “its version of the facts of [his] case” is not a
reasonable understanding of the plea agreement.           See United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002).        Further, the PSR did not
recommend that Costilla be awarded an adjustment for acceptance of
responsibility. Thus, there was no fulfillment of the condition that would have
triggered the Government’s obligation not to oppose a downward adjustment
and to move for an additional acceptance point. See United States v. Mejia, No.
93-2611, 1994 WL 243287, 1 (5th Cir. May 19, 1994) (unpublished).
      To the extent Costilla argues that the district court erred in not granting
him a reduction for acceptance of responsibility, the argument is barred by the
appeal waiver in his plea agreement. See United States v. Bond, 414 F.3d 542,
544 (5th Cir. 2005).
      The judgment of the district court is AFFIRMED.




                                       2
