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

                                                                   FILED
                                                                  April 16, 2008
                                 No. 07-40267
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ABEL C LUCIO

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:06-CR-963-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Abel C. Lucio appeals his 95-month sentence following his guilty-plea
conviction for two counts of distribution of material involving sexual exploitation
of minors. Lucio argues that the Government breached the plea agreement by
recommending a sentence within the applicable guidelines range and then
arguing in support of a sentence above that range.




      *
      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should not be published and is not precedent except under the limited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. 07-40267

      Because Lucio did not raise this argument in the district court, review is
for plain error. See United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).
Lucio has not borne his burden of establishing that there was a breach of the
plea agreement. See United States v. Cantu, 185 F.3d 298, 304-05 (5th Cir.
1999). Assuming that there was a breach of the plea agreement, however, Lucio
has not demonstrated that any such error affected his substantial rights. See
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). It is evident from
the two sentencing transcripts in this matter that the district court was intent
on sentencing Lucio above the applicable guideline range despite the
Government’s recommendation that he be sentenced within the applicable
guideline range. There is no indication that the district court’s decision to
sentence Lucio above the guideline range was influenced in any way by the
prosecutor’s comments. Because any assumed error was not prejudicial, it did
not affect Lucio’s substantial rights. See United States v. Puckett, 505 F.3d 377,
384 (5th Cir. 2007).
      The judgment of the district court is AFFIRMED.




                                        2
