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

                                                                            FILED
                                                                        November 10, 2008

                                       No. 08-40197                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

VICENTE SANCHEZ GUERRERO

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:06-CR-801-6


Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
                                  I. INTRODUCTION
       Appellant Vicente Sanchez Guerrero (“Guerrero”) was indicted for his role
in a drug distribution conspiracy in the Brownsville Division of the Southern
District of Texas between 1987 and September 2006. After a mistrial, Guerrero
entered into a plea agreement with the government, and subsequently pled
guilty to a violation of 18 U.S.C. § 1962 (1988), the Racketeer Influenced and
Corrupt Organizations Act. Despite the written objections of the government


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40197

and Guerrero to the Presentence Investigation Report (“PSR”), the district court
applied the sentencing enhancement set forth in USSG § 2D1.1(b)(1), a two-level
increase to the base offense level “[i]f a dangerous weapon (including a firearm)
was possessed” in connection with a drug crime. This enhancement resulted in
a total offense level of 42 and a range of imprisonment of 360 months to life, and
the district court sentenced Guerrero to 360 months of imprisonment. Guerrero
urges this court to find that the government’s tendering of firearm-related
information to the United States Probation Office (“Probation”) and statements
during sentencing constitute a breach of the plea agreement sufficient to
overcome his appellate waiver. Because we find no breach of the agreement, we
affirm Guerrero’s conviction and sentence.
            II. FACTUAL AND PROCEDURAL BACKGROUND
      Guerrero and his brother, Eloy Sanchez Guerrero, were the leaders of a
drug trafficking conspiracy that operated in the Rio Grande Valley between 1987
and 2006. The enterprise was responsible for the distribution of at least 1,900
kilograms of cocaine and over 70,000 kilograms of marijuana, and generated
over $38 million in proceeds. A search warrant executed at Guerrero’s home
resulted in the seizure of hundreds of rounds of ammunition, two loaded
firearms and a rifle from his bedroom, a built-in gun cabinet containing a double-
barrel shotgun in the nearby hallway, a short-barrel shotgun inside an attached
game room, and fourteen additional firearms in an attached garage. Many of
these firearms were purchased by Guerrero or his co-conspirators during the
existence of the conspiracy, and other members of the organization possessed or
used firearms in connection with the drug conspiracy.
      Guerrero was charged in seven counts of a fifteen count indictment.
Count Fifteen, to which Guerrero eventually pled guilty, included the allegation
that “[m]embers of the enterprise and their associates acquired firearms to
further the affairs of the enterprise.” On August 15, 2007, Guerrero signed a


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plea agreement by which he admitted conspiring to engage in a racketeering
enterprise, the conduct alleged in Count Fifteen of the indictment. Pursuant to
the plea agreement, the government agreed to dismiss the remaining counts
against Guerrero and stated that:
      The United States stipulates to the Court that the evidence to date
      does not show that the Defendant possessed a firearm during and
      in relation to the commission of the charged offenses.

The stipulated facts in the plea agreement did not reflect any firearm possession
by Guerrero, however, they identify Guerrero’s central role in the drug
distribution operation. Also in the plea agreement, the government reserved the
right to “carry out its responsibilities under guidelines sentencing[,]” including
the ability,
      (a)   to bring its version of the facts of this case, including its
      evidence file and any investigative files, to the attention of the
      Probation Office in connection with that office’s preparation of a
      presentence report;
      (b)   to set forth or dispute sentencing factors or facts material to
      sentencing . . .

Finally, the plea agreement contains a provision explaining that it “constitutes
the complete plea agreement between the United States, Defendant and his/her
counsel. No promises or representations have been made by the United States
except as set forth in writing in this plea agreement.”
      Guerrero entered his guilty plea pursuant to Rule 11 of the Federal Rules
of Criminal Procedure on the same day. During that rearraignment hearing, the
government summarized the terms of the plea agreement, including the
statement that “the United States stipulates to the Court that the evidence to
date does not show that this defendant possessed a firearm during and in
relation to the commission of the charged offense, which is this RICO
conspiracy.” In addition, Count Fifteen of the indictment was recited. That



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charge included, among other allegations, that “members of the enterprise and
their associates acquired firearms to further the affairs of the enterprise.”
      With information provided by the government, Probation prepared the
PSR. Within this report, Probation applied the sentencing enhancement set
forth in USSG § 2D1.1(b)(1), stating that “[d]uring the course of the drug
trafficking activity, the defendant was in possession of a firearm where drugs
were located and/or distributed.” Although recognizing that the plea agreement
provides that, “there is no evidence the defendant possessed a firearm during
and in relation to the charged offenses[,]” the PSR documents the firearms
recovered from Guerrero’s home and the additional firearms possessed within
the racketeering conspiracy, and concludes that Guerrero should be held
responsible for the firearms because the racketeering enterprise “used firearms
as a common tool of the trade[.]”
      Both the government and Guerrero filed objections to the firearms
enhancement portion of the PSR. Probation disagreed with the objections and
filed an addendum, elaborating upon its reasoning.          The defendant and
government filed objections to the addendum, again challenging the 2D1.1(b)(1)
enhancement. The government’s “supplemental response” to the PSR explained
further that “[i]t is the United States’ position that a gun enhancement is not
appropriate in this case. That is why the United States objected to the 2 point
increase for guns.”
      At sentencing, the district court devoted significant time to the firearms
enhancement. During the hearing, the government continued to urge that the
sentencing enhancement should not apply, despite its recognition that firearms
were discovered in Guerrero’s residence and were possessed by co-conspirators.
Despite the objection, the court ultimately determined that the enhancement
should apply.    Accordingly, the district judge overruled the objections of
Guerrero and the government, applied the 2D1.1(b)(1) enhancement, and


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Guerrero was sentenced to a Guidelines sentence of 360 months of
imprisonment. Due to an appellate waiver, the court’s ruling and subsequent
sentence are not challenged on appeal. Appellant’s sole point of error is his
newfound claim that the government violated the terms of the plea agreement
by providing evidence to Probation and the district court about firearms
connected to the racketeering conspiracy.
                            III. STANDARD OF REVIEW
       Because Guerrero failed to object to the purported breach of the plea
agreement in the district court, plain error review applies. United States v.
Puckett, 505 F.3d 377, 383-86 (5th Cir. 2007), cert. granted, 171 L. Ed. 2d 932
(Oct. 1, 2008) (No. 07-9712) (applying plain error review to breach of a plea
agreement).1 Neither side challenges this standard of review. To demonstrate
plain error, Guerrero must show error that was plain and affected his
substantial rights. See, e.g., United States v. Reyna, 358 F.3d 344, 350 (5th Cir.
2004); United States v. Branam, 231 F.3d 931, 933 (5th Cir. 2000) (“Even if we
find plain error, we will not exercise our discretion to correct a forfeited error
unless it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”).
       We note that since the parties filed their briefs, the United States
Supreme Court has granted the petition for certiorari in Puckett. Because our
case turns on the question of whether there was a breach, rather than the effect
of a breach, we conclude that the decision in Puckett will not affect the outcome
of this case.




       1
           The petition for certiorari was granted “limited to the following question: ‘Whether
a forfeited claim that the government breached a plea agreement is subject to the plain-error
standard of Rule 52(b) of the Federal Rules of Criminal Procedure.’” Puckett, 171 L. Ed. 2d 932
(Oct. 1, 2008) (No. 07-9712).

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      The party alleging breach bears the burden of proving the underlying facts
by a preponderance of evidence. United States v. Wilder, 15 F.3d 1292, 1295 (5th
Cir. 1994). In determining whether the terms of a plea agreement have been
violated, a court must determine “whether the government’s conduct is
consistent with what is reasonably understood by the defendant when entering
a plea of guilty.” United States v. Huddleston, 929 F.2d 1030, 1032 (5th Cir.
1991).
                                 IV. DISCUSSION
      General principles of contract law are used to interpret the terms of a plea
agreement. United States v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999). The sole
measure of performance is the agreement’s express terms. United States v.
Cates, 952 F.2d 149, 153 (5th Cir. 1992). In this matter, Guerrero claims that
the government violated the plea agreement’s provision that “[t]he United States
stipulates to the Court that the evidence to date does not show that the
Defendant possessed a firearm during and in relation to the commission of the
charged offenses.” This language does not constitute a promise of any kind. It
is, quite simply, a stipulation of existing fact – that the evidence in the case does
not show firearm possession “during and in relation to” the racketeering
enterprise.   This court has considered similar language as self-executing,
because, by its own terms, the contractual provision does not commit the
government to any future action. See United States v. Reeves, 255 F.3d 208, 209-
10 (5th Cir. 2001). In any case, we have recognized a distinction between the
proof required for the 2D1.1(b)(1) enhancement and the proof needed to show
possession “during and in relation to” a drug trafficking crime. See, e.g., United
States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006).
      It is well-settled that the express terms of the contract control; however,
this court must also determine whether the government’s conduct was consistent
with the defendant’s reasonable understanding of the agreement.                  See

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Huddleston, 929 F.2d at 1032. We first consider whether Guerrero’s basic
premise is correct; that is, whether the firearms stipulation – which itself
promises nothing – was the result of negotiations that Guerrero reasonably
expected to prevent the application of USSG § 2D1.1(b)(1), or foreclose the
government from providing information that could support such application.
Noticeably absent from Guerrero’s brief is a discussion of the fact that the same
plea agreement upon which Guerrero relies expressly recognizes the
government’s clear obligation to provide information in its possession to
Probation. See, e.g., United States v. Avery, 621 F.2d 214, 216 (5th Cir. 1980)
(parties cannot agree to withhold relevant information from the court).
Certainly this statement in the plea agreement should have tempered any
expectation Guerrero had that the government would not provide information
to Probation.
       Assuming arguendo that Guerrero had a reasonable expectation that the
government would not do anything to “contradict” the stipulation, we conclude
that it did not violate such an agreement. It provided truthful information to
Probation and responded to the district court’s questions. See United States v.
Block, 660 F.2d 1086, 1091 (5th Cir. Unit B Nov. 1981) (“Efforts by the
Government to provide relevant factual information or to correct misstatements
are not tantamount to taking a position on the sentence and will not violate the
plea agreement.”)        Further, we conclude that the government’s repeated
objections to the PSR’s recommendation of a firearms enhancement negated any
implication from any statement the government made during sentencing that it
was somehow supporting the application of the enhancement.2


       2
        Again, the government provided no information, and the district court did not find,
that Guerrero possessed a firearm “during and in relation to” the conspiracy; instead, the court
applied the enhancement because “‘a temporal and spatial relation existed between the
weapon, the drug trafficking activity, and the defendant.’” United States v. Eastland, 989 F.2d
760, 770 (5th Cir. 1993) (quoting United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991)).

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      Guerrero agreed to a plea agreement that promised nothing and expressly
acknowledged that the government would provide information to Probation. He
pleaded guilty to a count that contained information about the possession of
firearms in connection with the racketeering conspiracy. Under the facts of this
case, the government’s conduct does not constitute a breach of the plea
agreement. We find no error – plain or otherwise.
      Accordingly, the judgment of the district court is AFFIRMED.




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