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

                                                 FILED
                                                                         December 18, 2009
                                     No. 09-40242
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SERGIO GUADALUPE VILLARREAL-RODRIGUEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:08-CR-235-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Sergio Guadalupe Villarreal-Rodriguez (Villarreal) appeals his conviction
and sentence for illegal reentry following deportation. Villarreal was sentenced
to 88 months of imprisonment and a three-year term of supervised release.
       Villarreal argues that his guilty plea and the appeal waiver contained
therein are invalid because the Government breached the plea agreement when
it failed to recommend at sentencing that he receive maximum credit for
acceptance of responsibility. The Government concedes that the plea agreement

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40242

was breached and does not oppose a remand for resentencing. The Government’s
breach, however, does not retroactively cause Villarreal’s guilty plea to be
unknowing and involuntary. See Puckett v. United States, 129 S. Ct. 1423, 1430
(2009).
      Villarreal’s appeal waiver does not affect his ability to raise a breach
argument. See United States v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002).
Where, as here, there was no objection to the breach of the plea agreement at
sentencing, the issue is reviewed for plain error. Puckett, 129 S. Ct. at 1428-33.
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Id. at 1429. If the appellant
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      “In determining whether the terms of the plea bargain have been violated,
[this] court must determine whether the government’s conduct is consistent with
the parties’ reasonable understanding of the agreement.”        United States v.
Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (internal quotation marks omitted).
The Government breached the plea agreement in this case by failing to
recommend that Villarreal receive maximum credit for acceptance of
responsibility. This error was both clear and obvious. Because Villarreal did not
receive the benefit contemplated in his agreement, there is no indication that the
district court would not have granted credit for acceptance of responsibility had
the Government requested it, and the grant of such credit would have lowered
Villarreal’s guidelines sentencing range significantly, we conclude that
Villarreal’s substantial rights were affected. See id. at 1432-33 & n.4. We
exercise our discretion to VACATE Villarreal’s sentence and REMAND his case
to the district court for resentencing.




                                          2
