     Case: 14-40164      Document: 00512992030         Page: 1    Date Filed: 04/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40164
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 2, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BULMARO PADRON MARTINEZ, also known as Chapparo, also known as
Gumaro,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-842-6


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Bulmaro Padron Martinez pleaded guilty pursuant to a written plea
agreement to one count of conspiring to transport illegal aliens for profit in
violation of 18 U.S.C. § 1324. The district court sentenced him to 51 months




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40164      Document: 00512992030   Page: 2   Date Filed: 04/02/2015


                                 No. 14-40164

in prison, which was at the top of his advisory guidelines range. He now
appeals his sentence.
      We review for plain error Martinez’s claim that the Government
breached the plea agreement by violating its promise not to oppose his request
to be held accountable for not more than 24 aliens. See Puckett v. United
States, 556 U.S. 129, 135 (2009). To show plain error, Martinez must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See id. If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
      Although the plea agreement included a waiver of Martinez’s right to
appeal his sentence, an appeal waiver is unenforceable if the Government
breaches a plea agreement. United States v. Gonzalez, 309 F.3d 882, 886 (5th
Cir. 2002). The Government did not breach the plea agreement in this case.
In fact, the Government specifically stated that it was honoring the agreement
by advocating for the 24-alien count.        Furthermore, the Government’s
statement that the district court was not bound by the promise in the plea
agreement did not constitute a breach of the agreement. See United States v.
Benchimol, 471 U.S. 453, 455-56 (1985); FED. R. CRIM. P. 11(b)(1)(M). Because
the Government did not breach the plea agreement, the valid appeal waiver
bars this appeal. See United States v. Purser, 747 F.3d 284, 294-95 (5th Cir.),
cert. denied, 135 S. Ct. 403 (2014). Accordingly, the appeal is DISMISSED.




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