     Case: 15-50869      Document: 00513598588         Page: 1    Date Filed: 07/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50869
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 19, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

NORMAN GAMONEDA-ROMERO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-515-2


Before DAVIS, JONES and GRAVES, Circuit Judges.
PER CURIAM: *
       Norman Gamoneda-Romero pleaded guilty to conspiracy to possess with
intent to distribute 50 kilograms or more of marijuana in violation of 21 U.S.C.
§ 846, and he was sentenced to 70 months of imprisonment and three years of
supervised release.      Gamoneda-Romero pleaded guilty pursuant to a plea
agreement in which he waived the right to appeal his sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50869

      Gamoneda-Romero argues that the Government breached the plea
agreement by seeking an upward adjustment for obstruction of justice because
his “reasonable understanding of the plea agreement was that the base offense
level was 22 based on the amount of marijuana.” The Government contends
that it was not precluded by the plea agreement from supporting the
adjustment because it specifically reserved the right to dispute material facts
and sentencing factors involved in calculating his guidelines range.
      Although Gamoneda-Romero waived his right to appeal his sentence in
his plea agreement, we have held that the breach of the agreement renders the
agreement, including an appeal waiver, void. United States v. Keresztury, 293
F.3d 750, 755-57 (5th Cir. 2002). Whether the Government breached a plea
agreement is generally a question of law subject to de novo review, but in this
case, our review is limited to plain error because Gamoneda-Romero did not
raise the breach issue in the district court. See United States v. Hinojosa, 749
F.3d 407, 411 (5th Cir. 2014). Thus, he must show a clear or obvious error that
affected his substantial rights, and we may exercise our discretion to correct
the error if it seriously affects the fairness, integrity, or public reputation of
the proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).
      According to Gamoneda-Romero, the parties stipulated that the offense
involved 93.51 kilograms, and he contends that, because this quantity would
set his base offense level at 22, the government breached the agreement by
seeking a two-level increase for obstruction of justice. He contends that his
“reasonable understanding of the plea agreement was that the base offense
level was 22 based on the amount of marijuana.”
      We cannot agree that it was reasonable for Gamoneda-Romero to believe
that the agreement included a term stating that his offense level would be 22
or that the government was precluded from seeking any enhancement above



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                                 No. 15-50869

an offense level of 22. See Hinojosa, 749 F.3d at 413. The plea agreement does
not reference any specific offense level or preclude the government from
seeking any adjustments, although it does preclude it from opposing an
adjustment for acceptance of responsibility.      Furthermore, the agreement
expressly allows the government to contest the material facts and sentencing
factors in the presentence report and also warns that any estimate of a
particular sentence is uncertain. Gamoneda-Romero has therefore failed to
establish any clear or obvious breach of the plea agreement. See id.
      The government argues that the appeal waiver should be enforced and
the appeal should be dismissed.      In the absence of a breach of the plea
agreement, the appeal waiver is enforced to preclude consideration of
Gamoneda-Romero’s challenge to his sentence. See Keresztury, 293 F.3d at
756-57. But because he had the right to appeal for the purpose of challenging
the appeal waiver based on a breach of the plea agreement, we do not dismiss
the appeal, but we affirm the judgment of the district court. See United States
v. Roberts, 624 F.3d 241, 246 (5th Cir. 2010).




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