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

                                                                FILED
                                                              October 30, 2007
                               No. 07-50135
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

DAVID DELGADO

                                         Defendant-Appellant


                Appeal from the United States District Court
                     for the Western District of Texas
                         USDC No. 3:06-CR-1661-1


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
     David Delgado appeals following his guilty plea to presenting false
documents in violation of 18 U.S.C. § 1001(a)(3). Delgado entered his plea in
accordance with a plea agreement wherein he agreed to plead guilty to counts
three and four of the indictment in exchange for the Government’s agreement
to dismiss the remaining counts. The parties also agreed “to request the Court
to consult with and take into account the United States Sentencing Guidelines
and accompanying policy statements [] for the calculation of [Delgado’s]

     *
      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should not be published and is not precedent except under the limited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. 07-50135

sentence.” Delgado also agreed to waive his right to appeal his sentence “on any
ground” with the exception of ineffective assistance of counsel or prosecutorial
misconduct.
      Delgado argues that the Government breached the plea agreement by
arguing that his base offense level should be any level other than the level called
for by the two counts of the indictment to which he pleaded guilty. He argues
that any defendant signing a plea agreement such as his “would logically
understand that he would be sentenced according to the two counts he pled
guilty to and not according to the five counts the government agreed to dismiss.”
      “Whether the Government has breached a plea agreement is a question of
law that the court reviews de novo.” United States v. Munoz, 408 F.3d 222, 226
(5th Cir. 2005) (footnote omitted). “In determining whether the Government
violated the plea agreement, this court considers whether the Government’s
conduct was consistent with the defendant’s reasonable understanding of the
agreement.” Id. (internal quotations omitted).
      In United States v. Ashburn, 38 F.3d 803, 808 (5th Cir. 1994) (en banc),
this court held that the district court did not err in considering, as a ground for
an upward departure, conduct which formed the basis for counts dismissed
pursuant to a plea agreement.        This court noted that although the plea
agreement provided for the dismissal of certain counts, the agreement contained
no language that could have led the defendant to believe that the dismissed
counts could not be used as the basis for an upward departure. Id. The court
further noted that the plea agreement clearly stated that there was no
agreement as to what the sentence would be. Id.
      Similarly, in the instant case, the language of the plea agreement in no
way implied a limitation on the district court’s power to consider the dismissed
counts as a basis for sentencing. The agreement also provided that Delgado was
aware that “any sentence imposed can be up to the maximum allowed by statute
for the offense.” Delgado thus could not have reasonably inferred from the plea

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agreement that the district court was barred from considering the dismissed
counts in its sentencing determination.
      Delgado’s argument that his sentence violates “the principle of the
indictment” and due process is without merit because he was not convicted of an
offense not charged in the indictment. Compare United States v. Cabrera-Teran,
168 F.3d 141, 144 (5th Cir. 1999) (indictment that fails to charge essential
elements of the offense violates due process).
      Delgado has not shown that the plea agreement was breached. He does
not argue that the agreement or the appeal waiver was unknowing or
involuntary. Accordingly, the appeal is DISMISSED. See United States v.
Baymon, 312 F.3d 725, 729-30 (5th Cir. 2002).




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