     Case: 12-51046       Document: 00512326135         Page: 1     Date Filed: 07/30/2013




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

                                                                            FILED
                                                                            July 30, 2013
                                     No. 12-51046
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CESAR ANTONIO CARDONA-GARCIA, also known as Cesar Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-150-1


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cesar Antonio Cardona-Garcia appeals his guilty plea conviction of aiding
and abetting the unlawful exportation of firearms and possession of a firearm by
a person unlawfully present in the United States.                   He argues that the
Government breached the plea agreement by failing to inform the district court
at sentencing of the extent of his cooperation. He also argues that he was not
unlawfully present in the United States because, at the time of the offense, he



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-51046      Document: 00512326135       Page: 2    Date Filed: 07/30/2013

                                    No. 12-51046

was free on an immigration bond pending the resolution of his asylum application.
      When a defendant does not raise the issue of breach in the district court,
as in this case, review is limited to plain error. Puckett v. United States, 556
U.S. 129, 134-43 (2009). To show plain error, the appellant must show a
forfeited error that is clear or obvious and that affects his substantial rights. Id.
at 135. If the appellant makes such a showing, this court has 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). The appellant has the burden of demonstrating the underlying facts
that establish the breach by a preponderance of the evidence. United States v.
Roberts, 624 F.3d 241, 246 (5th Cir. 2010).
      The language contained in the plea agreement makes it clear that any
obligation the Government had to inform the district court of the extent of
Cardona-Garcia’s cooperation was not triggered unless or until the Government
filed a U.S.S.G. § 5K1.1 recommendation. In this case, the Government elected
not to file such a recommendation. Thus, the Government was under no
obligation to inform the district court about the extent of Cardona-Garcia’s
cooperation. In light of the foregoing, Cardona-Garcia has not established that
the Government breached the plea agreement. See id.
      As Cardona-Garcia correctly concedes, his argument regarding the
lawfulness of his presence in the United States is foreclosed by United States v.
Elrawy, 448 F.3d 309 (5th Cir. 2006), and United States v. Lucio, 428 F.3d 519
(5th Cir. 2005). He raises the issue, however, to preserve it for possible further
review.
      AFFIRMED.




                                          2
