     Case: 16-20572      Document: 00514014079         Page: 1    Date Filed: 05/31/2017




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

                                    No. 16-20572                                FILED
                                  Summary Calendar                          May 31, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HUGO ALEXANDER MELENDEZ-GONZALEZ, also known as El Gordo, also
known as Mario Antonio Chavez-Melendez, also known as Jose Antonio
Melendez,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CR-497-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Hugo Alexander Melendez-Gonzalez pleaded
guilty, pursuant to a plea agreement containing an appellate waiver, to
trafficking a minor female referred to as M.G.C. in or about March 2013, in
violation of 18 U.S.C. § 1591. In return for the guilty plea, the government
agreed to move to dismiss the remaining three counts of the indictment and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20572

not to oppose a request for a two-level downward adjustment for acceptance of
responsibility. In the presentence report (PSR), the probation officer relied on
U.S.S.G. § 2G1.3(d)(1) and U.S.S.G. § 1B1.3(a)(1) to treat the crimes against
other victims who were trafficked at the same time as M.G.C. as relevant
conduct in “pseudocounts.” Melendez-Gonzalez objected to the PSR because
the probation officer did not show that the other victims were trafficked at the
same time as M.G.C. The district court overruled his objection and sentenced
him to 327 months of imprisonment and 10 years of supervised release.
      On appeal, Melendez-Gonzalez argues that the government breached the
plea agreement by endorsing the use of pseudocounts and uncharged conduct
to enhance his sentence. Typically, whether the government has breached a
plea agreement is a question of law that we review de novo. United States v.
Chavful, 781 F.3d 758, 761 (5th Cir. 2015). Here, however, plain error review
applies because Melendez-Gonzalez did not object to any breach in the district
court. See United States v. Hebron, 684 F.3d 554, 557-58 (5th Cir. 2012).
Therefore, Melendez-Gonzalez must show a forfeited error that is clear or
obvious and that affected his substantial rights. See Puckett v. United States,
556 U.S. 129, 135 (2009). And, even if he makes such a showing, 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. (internal quotation
marks and citations omitted).
      A defendant may claim that the government breached the plea
agreement despite the appeal waiver contained in his plea agreement. See
United States v. Keresztury, 293 F.3d 750, 756-57 (5th Cir. 2002).           The
defendant “has the burden of demonstrating the underlying facts that
establish breach by a preponderance of the evidence.” United States v. Long,
722 F.3d 257, 262 (5th Cir. 2013) (internal quotation marks and citation



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                                No. 16-20572

omitted). “In determining whether the government violated a plea agreement,
this court considers whether the government’s conduct was consistent with the
defendant’s reasonable understanding of the agreement.” United States v.
Munoz, 408 F.3d 222, 226 (5th Cir. 2005) (internal quotation marks and
citation omitted).
      Melendez-Gonzalez has failed to show an error, plain or otherwise,
because he has not shown that the government breached the plea agreement.
See Puckett, 556 U.S. at 135.     The government does not breach a plea
agreement by supporting enhancements based on relevant conduct when the
plea agreement does not include a promise to disregard relevant conduct. See
United States v. Hinojosa, 749 F.3d 407, 413-14 (5th Cir. 2014); United States
v. Hoster, 988 F.2d 1374, 1378 (5th Cir. 1993). In this case, the government
did not promise to disregard relevant conduct. It only agreed to dismiss the
remaining counts of the indictment, which it did.
      The judgment of the district court is AFFIRMED.




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