                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                             F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                                     June 5, 2006

                                                                         Charles R. Fulbruge III
                                                                                 Clerk
                                No. 05-40230
                              Summary Calendar



                       UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                      versus

                              RODERICK ELLIOT,

                                                        Defendant-Appellant.


             Appeal from the United States District Court
                   for the Eastern District of Texas
                           (4:03-CR-105-ALL)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Roderick    Elliot     appeals    his     conviction        and   sentence      for

conspiracy to damage a protected computer.                       He claims:          the

Government     breached     the   plea    agreement         by     recommending         a

“particular”    term   of    imprisonment;       and   he    was       sentenced      in

contravention of United States v. Booker, 543 U.S. 220 (2005).

     Whether the Government breached the plea agreement is reviewed

only for plain error because Elliot did not object in district

court.   E.g., United States v. Munoz, 408 F.3d 222, 226 (5th Cir.

     *
       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this opinion should not be published and is not precedent except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.
2005). The Government reserved the right to oppose any sentence

that, in its opinion, was outside the Sentencing Guidelines, and

defense counsel’s request that Elliot receive only six months of

shock incarceration was prohibited both by the Guidelines and the

applicable statute.      See U.S.S.G. § 5F1.7, cmt. a; 18 U.S.C. §

4046(a).    Elliot has shown no error, plain or otherwise.

      Elliot’s plea agreement contained an appeal waiver; however,

the Government’s failure to enforce that provision renders it

nonbinding, permitting our reaching the Booker claim.               See United

States v. Story, 439 F.3d 226, 231 (5th Cir. 2006).            That claim was

preserved   in   district   court.         The   district   court   imposed   a

discretionary, alternative sentence identical to the one it had

imposed under the mandatory Guidelines, to become effective should

the   Supreme    Court   declare     the    Guidelines      unconstitutional.

Therefore, the Government has carried its burden of proving the

Booker error harmless. See United States v. Saldana, 427 F.3d 298,

314 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005).

                                   CONVICTION AND SENTENCE AFFIRMED




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