     Case: 12-50691       Document: 00512290927         Page: 1     Date Filed: 06/28/2013




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

                                                                            FILED
                                                                           June 28, 2013
                                     No. 12-50691
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID DE LEON,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-964-2


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       David De Leon appeals the 151-month within-guidelines sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute less than 500 grams of cocaine in violation of 21 U.S.C. § 846. He
argues that the Government breached its obligations under the plea agreement
to advise the district court at sentencing of the extent of his cooperation and to
move for a sentence that reflected his cooperation.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50691     Document: 00512290927     Page: 2   Date Filed: 06/28/2013

                                  No. 12-50691

      De Leon’s claim of a breached plea agreement may be raised despite his
appeal waiver. See United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010).
As De Leon concedes, however, because he did not argue at sentencing that the
Government breached the plea agreement, we review this issue for plain error.
See United States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001); see also Puckett
v. United States, 556 U.S. 129, 135 (2009).
      The district court was made aware via the presentence report and defense
counsel’s statements at sentencing that De Leon cooperated in connection with
the instant offense but that his cooperation did not constitute the substantial
assistance necessary to warrant a departure under U.S.S.G. § 5K1.1. As the
district court was made generally aware of the extent of De Leon’s cooperation,
De Leon has not shown that the Government’s conduct at sentencing was
inconsistent with the parties’ reasonable understanding of the plea agreement.
See United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993); United States
v. Hooten, 942 F.2d 878, 884 (5th Cir. 1991). Even if there was error, De Leon
has not shown that such error was clear or obvious or that, but for the
Government’s alleged breach of its obligation to explain the extent of his
cooperation, he would have received a lesser sentence. See United States v.
Hebron, 684 F.3d 554, 558-59 (5th Cir. 2012); Garcia-Bonilla, 11 F.3d at 46;
Hooten, 942 F.2d at 884. Accordingly, De Leon has not shown any reversible
plain error with respect to this claim.
      Moreover, pursuant to the plea agreement, the Government reserved the
sole right to determine whether De Leon’s cooperation was truthful and
substantial so as to recommend a downward departure under U.S.S.G. § 5K1.1.
The Government’s decision not to move for a § 5K1.1 departure did not
constitute a breach of the plea agreement. See United States v. Solis, 169 F.3d
224, 226-27 (5th Cir. 1999).      As De Leon’s arguments on appeal fail to
demonstrate any reversible error, the district court’s judgment is AFFIRMED.



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