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

                                                 FILED
                                                                            May 28, 2009
                                     No. 08-30707
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee

v.

MICHAEL DECLOUET

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-CR-198-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Michael Declouet appeals his guilty-plea convictions and sentences for
conspiracy to commit Hobbs Act armed robbery, in violation of 18 U.S.C.
§ 1915(a); Hobbs Act armed robbery of Studio 440 in Jefferson, Louisiana, in
violation of 18 U.S.C. § 1951(a); being a felon in possession of a firearm, in
violation of 21 U.S.C. § 922(g); and carjacking, in violation of 18 U.S.C. § 2119.
In the factual basis for the plea, Declouet admitted his participation in
numerous uncharged robberies undertaken during the course of the conspiracy

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30707

in which he was engaged, and those robberies were included in the calculation
of his sentence under the Guidelines. Declouet now argues that the use of
incriminating statements he made during debriefing regarding the other
uncharged robberies to enhance his sentence constituted a breach of the
immunity clause contained in the plea agreement. More specifically, Declouet
contends, for the first time on appeal, that the district court erred in relying on
the exception for information previously obtained from other sources under
U.S.S.G. § 1B1.8(b)(1), urging that the plea agreement did not contain such an
exception and that there is no basis under contract law for reading such
exception into the plea agreement.
      Although Declouet waived his right to appeal his conviction and sentence
as part of his plea, the waiver does not prevent this court from addressing the
merits of the issue whether the Government breached the plea agreement. See
United States v. Keresztury, 293 F.3d 750, 755-56 (5th Cir. 2002)); see also
United States v. Price, 95 F.3d 364, 366-68 (5th Cir. 1996).           Nevertheless,
because the breach issue Declouet now raises was not presented to the district
court, review is for plain error only. See Puckett v. United States, ___ S. Ct. ___,
2009 WL 763354, *4-5 (March 25, 2009).           To demonstrate plain error, the
appellant must make a four-pronged showing: 1) there must be a deviation from
a legal rule that was not intentionally abandoned or affirmatively waived by the
appellant; 2) the legal error was clear or obvious, i.e., not subject to reasonable
dispute; 3) the error affected his substantial rights; and 4) if the first three
prongs are satisfied, the appellate court has the discretion to correct the error
only if it seriously affects “the fairness, integrity or public reputation of judicial
proceedings.”    Id. at *5 (internal quotation marks and citation omitted).
      Declouet has not met his burden of demonstrating plain error arising out
of the alleged breach of his plea agreement.          He urges that whether the
information regarding the uncharged robberies came from other sources prior
to his debriefing is irrelevant because the plea agreement does not contain the

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                                 No. 08-30707

exceptions listed under § 1B1.8(b), meaning that the plea agreement provides
greater immunity than § 1B1.8. According to Declouet, the Government could
have expressly listed the exceptions contained in § 1B1.8 in the plea agreement,
and that, by failing to do so, the Government relinquished them. However, this
court has found that the use of incriminating statements made during debriefing
did not violate the plea agreement despite any promise of immunity, implicitly
reasoning that the protections of § 1B1.8 were incorporated into the plea
agreement. See United States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995).
Declouet contends that Gibson is inapposite because it did not specifically
address the issue presented here, to wit: whether the general principles of
contract law prohibit a court from reading into a plea agreement the exceptions
listed in § 1B1.8(b) when they are not explicitly incorporated therein. However,
he acknowledges that there is no Fifth Circuit authority supporting his
contention.
      Assuming arguendo that Gibson does not foreclose Declouet’s argument,
he has not shown any clear or obvious error given the absence of any Fifth
Circuit authority directly supporting the contention that the Government waives
the exceptions listed in § 1B1.8(b) by not specifically including them in the
written plea agreement. See United States v. Salinas, 480 F.3d 750, 756 (5th
Cir. 2007) (“An error is considered plain, or obvious, only if the error is clear
under existing law.”); United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998);
see also Puckett, 2009 WL 763354 at *9 (indicating that there is no clear or
obvious error when the scope of the Government’s obligations under the plea
agreement are open to doubt). Accordingly, the district court’s judgment is
AFFIRMED.




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