     Case: 15-40336      Document: 00513468768         Page: 1    Date Filed: 04/18/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40336
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 18, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ARMANDO ARIZMENDI-HERNANDEZ, also known as Mando, also known
as XW-2, also known as Commandante Mando,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-623-4


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Armando Arizmendi-Hernandez appeals his guilty plea conviction
conspiracy to import 5 kilograms or more of cocaine and 1000 kilograms or
more of marijuana.         The plea agreement contained a waiver of appeal
provision. In exchange for the waiver, the Government agreed to dismiss the
remaining counts of the indictment, agreed to not oppose an adjustment for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-40336

responsibility if he accepted responsibility in accordance with the Sentencing
Guidelines, and agreed to recommend a sentence at the low end of the
recommended guidelines range. The Government seeks to enforce the appeal
waiver. See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
      Arizmendi-Hernandez argues that his waiver of appeal is not valid
because the Government breached the plea agreement. He asserts that the
Government breached the plea agreement by not recommending credit for
acceptance of responsibility, by failing to recommend a sentence at the low end
on the guidelines range, and by arguing that his trafficking in heroin and
methamphetamine be included in the relevant conduct for his offense. “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). If, as is the case here, a defendant fails to object to a breach of the plea
agreement, review is for plain error. See Puckett v. United States, 556 U.S.
129, 133-34 (2009).
      With respect to the first argument, the plea agreement expressly
provided that the Government would not oppose the “anticipated request” for
a two-level reduction for acceptance of responsibility if his future actions
warranted such a reduction and “may move for an additional one (1)-level
downward adjustment” based on the timeliness of the plea or complete
information as to his role in the offense. The Government did not breach this
aspect of the plea agreement. Further, given his offense level, any purported
breach did not affect Arizmendi-Hernandez’s substantial rights. See United
States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012).
      Next, the Government stated at sentencing that the recommended
sentence was life but noted that it was merely a baseline for the district court
to use to determine if Arizmendi-Hernandez should be punished as harshly as



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                                No. 15-40336

others in the conspiracy. This was not a breach of the agreement to recommend
a sentence at the low end of the recommended guidelines range.
      In addition, Arizmendi-Hernandez argues that the Government
breached the plea agreement because the relevant conduct found by the district
court was not limited to the stipulation that was part of the plea packet memo.
The plea agreement stated that the 12 pages containing the plea agreement
and attached addendum were the complete agreement between the parties and
that no other promises or agreements were made by the Government.
Arizmendi-Hernandez has not established a breach of the plea agreement on
this point. Further, there was no effect on his substantial rights. See Hebron,
684 F.3d at 559.
      Finally, the argument that his plea agreement was made in accordance
with Federal Rule of Criminal Procedure 11(c)(1)(C) is not supported by the
record. The plea agreement contained no specific agreement that a sentencing
factor “does or does not apply” and there was no specific agreement to bind the
district court. FED. R. CRIM. P. 11(c)(1)(C). This argument has no merit.
      Accordingly, Arizmendi-Hernandez’s waiver of appeal is valid and his
appeal is DISMISSED.




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