                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 16, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 05-40477
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

ANTONIO MACIAS-RODRIGUEZ,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                        (7:04-CR-937-ALL)
                      --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges

PER CURIAM:*

     Having pleaded guilty pursuant to a plea agreement, Defendant-

Appellant Antonio Macias-Rodriguez appeals his sentence for being

illegally present in the United States after having been deported,

in violation of 8 U.S.C. § 1326(a) and (b).        Macias-Rodriguez

argues that the government breached the plea agreement by stating

that its promise to recommend a two-level downward departure from

the federal sentencing guidelines pursuant to U.S.S.G. § 5K3.1 was

“unfortunately” included in the plea agreement and by advising the


     *
       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this opinion should not be published and is not precedent except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.
district court that it mistakenly recommended that Macias-Rodriguez

receive the departure.   The government explains that, at the time

of the plea agreement, it did not realize that Macias-Rodriguez had

a prior conviction for violating 8 U.S.C. § 1326.

     As Macias-Rodriguez did not object at sentencing to the

government’s alleged breach of the plea agreement, we review his

argument for plain error.   See United States v. Reeves, 255 F.3d

208, 210 n.2 (5th Cir. 2001).    We perceive no such error.    The

district court was aware that the government had recommended a

departure pursuant to U.S.S.G. § 5K3.1, yet the court made it clear

that it had no intention of granting such a departure under any

circumstances.   Reeves, 255 F.3d at 210-11 & n.3; United States v.

Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc).     Macias-

Rodriguez’s conviction and sentence are therefore

AFFIRMED.
