     Case: 11-50004     Document: 00511789957         Page: 1     Date Filed: 03/15/2012




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

                                                                            FILED
                                                                          March 15, 2012
                                     No. 11-50004
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ALONSO DE LA MADRID,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:06-CR-1027-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Alonso De La Madrid pleaded guilty, pursuant
to a plea agreement, to conspiracy to possess with the intent to distribute
cocaine.     The district court sentenced De La Madrid to 188 months of
imprisonment. De La Madrid now claims that the government breached the plea
agreement at his sentencing hearing by urging that his relevant conduct
included an additional 90 kilograms of cocaine not discussed in the factual basis
to which he stipulated.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50004   Document: 00511789957      Page: 2   Date Filed: 03/15/2012

                                  No. 11-50004

      “Whether the government has violated a plea agreement is a question of
law hinging upon whether the government’s conduct is consistent with the
parties’ reasonable understanding of the agreement.”           United States v.
Cerverizzo, 74 F.3d 629, 632 (5th Cir. 1996). As De La Madrid raises his
argument for the first time on appeal, review is for plain error. See Puckett v.
United States, 556 U.S. 129, 133-36 (2009). Plain-error review involves four
steps: First, there must be an error or defect that has not been affirmatively
waived by the defendant. Second, the error must be clear or obvious, i.e., not
subject to reasonable dispute.      Third, the error must have affected the
defendant’s substantial rights. Fourth, if the above three steps are satisfied, 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. at 135.
      Although the government asserted at sentencing that an additional 90
kilograms not reported in the factual basis should be included in De La Madrid’s
relevant conduct, there was no “express promise in the plea agreement that the
government’s statement plainly violated,” and thus any error with respect to the
alleged breach is not clear or obvious. United States v. Reeves, 255 F.3d 208,
211-12 (5th Cir. 2001). Neither is it clear or obvious that the government was
not entitled to argue facts regarding the 90 additional kilograms of cocaine, as
“the Government does not have a right to make an agreement to stand mute in
the face of factual inaccuracies or to withhold relevant factual information from
the court.”   United States v. Block, 660 F.2d 1086, 1092 (5th Cir. 1981).
Moreover, because the factual basis provided that De La Madrid conspired to
deliver 150 kilograms of cocaine, and the district court noted that the base
offense level remained the same whether 150 kilograms or more was involved,
see U.S.S.G. § 2D1.1(c)(1), De La Madrid has not demonstrated that his
substantial rights were affected by the alleged breach of the plea agreement. See
Puckett, 556 U.S. at 142 n.4.



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  Case: 11-50004   Document: 00511789957     Page: 3   Date Filed: 03/15/2012

                                No. 11-50004

      De La Madrid hsas not briefed any claim with respect to his contention
that his plea was not given knowingly and voluntarily. That issue is therefore
deemed abandoned. See United States v. Guerrero, 169 F.3d 933, 943 (5th Cir.
1999).
      AFFIRMED.




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