     Case: 11-40494     Document: 00512042079         Page: 1     Date Filed: 11/02/2012




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

                                                                            FILED
                                                                         November 2, 2012
                                     No. 11-40494
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

UVALDO TORRES,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:10-CR-1237-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Uvaldo Torres pleaded guilty to count one of a three-count indictment to
conspiring to transport illegal aliens within the United States. In the plea
agreement, the Government agreed to move to dismiss the remaining counts of
the indictment at sentencing but failed to do so. The district court sentenced
Torres to 34 months of imprisonment and three years of supervised release.
        Torres contends that the Government breached the plea agreement by
failing to request the dismissal of counts two and three of the indictment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40494    Document: 00512042079      Page: 2    Date Filed: 11/02/2012

                                   No. 11-40494

Neither party disputes the validity of Torres’s conviction for count one. Both
parties request modification of the judgment to reflect the dismissal of counts
two and three of the indictment.
      “The Government must strictly adhere to the terms and conditions of its
promises in a plea agreement.” United States v. Harper, 643 F.3d 135, 139 (5th
Cir. 2011). Whether the Government breached a plea agreement is a question
of law that we typically review de novo. Id.
      Torres did not object to the Government’s breach of the plea agreement in
the district court. Therefore, review is for plain error. See United States v.
Branam, 231 F.3d 931, 933 (5th Cir. 2000). To show plain error, Torres must
show that the error was clear or obvious and affects his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
we have the discretion to correct the error but only if it “‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” Id. (alteration
in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
      There is no indication in the record that the Government complied with its
obligation in the plea agreement to move to dismiss counts two and three of the
indictment at sentencing.      Therefore, the Government breached the plea
agreement, and the error was clear or obvious. See Harper, 643 F.3d at 139.
Accordingly, we remand the case to the district court for modification of the
judgment to reflect the dismissal of counts two and three of the indictment.
      The case is REMANDED to the district court to enter a corrected judgment
reflecting the dismissal of counts two and three of the indictment.




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