     Case: 09-20500     Document: 00511659901         Page: 1     Date Filed: 11/08/2011




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

                                                                            FILED
                                                                         November 8, 2011

                                       No. 09-20500                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

JUAN SANCHEZ, also known as Pantera,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-93-2


Before SMITH, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
        Pursuant to a written plea agreement, Juan Sanchez pleaded guilty to
conspiracy to possess with intent to distribute five kilograms or more of cocaine,
in violation of 21 U.S.C.§ 846, § 841(a)(1), and § 841(b)(1)(A)(ii). The district
court sentenced Sanchez to 210 months in prison. Sanchez appeals his sentence
and conviction, arguing that the government violated the plea agreement by not
standing mute at sentencing on the issue of Sanchez’s role in the conspiracy. For
the following reasons, we AFFIRM.

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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                                        I.
      On April 2, 2008, Juan Sanchez signed a written plea agreement in which
he agreed to plead guilty to conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. § 846, § 841(a)(1), and §
841(b)(1)(A)(ii). In his plea agreement, Sanchez waived “the right to appeal the
sentence imposed or the manner in which it was determined” with the exception
of “the right to appeal an illegal sentence or an upward departure from the
guidelines not requested by the United States.” Sanchez also waived his right
to collaterally attack his conviction or sentence. In return, the government
agreed, inter alia, “to limit the adjustment to [Sanchez’s] offense level based
upon his aggravating role to three (3) levels pursuant to U.S.S.G. Section
3B1.1(b)” and “to stand mute on this issue during” sentencing.
      The presentence report (PSR) calculated Sanchez’s base offense level to be
38. The PSR recommended a four-level aggravating role adjustment based on
Sanchez’s leadership position in the distribution organization, and a three-level
reduction for acceptance of responsibility, which resulted in a total recommended
offense level of 39. The PSR then calculated Sanchez’s criminal history score to
be three, establishing a criminal history category of II.       Based on these
recommended findings, Sanchez’s resulting advisory sentencing guidelines range
was 292 to 365 months of imprisonment.
      At sentencing, the district court determined that, based on the plea
agreement, Sanchez’s base offense level should be 36, not 38, and the
aggravating role adjustment should be three levels, not four. Sanchez’s counsel
objected to this latter conclusion, arguing the information in the PSR supported
only a two-level, not a three-level, aggravating role increase. The district court
then asked the government, “Do you want to respond?” Notwithstanding its
agreement to stand mute, the government identified several facts in the PSR
that supported the three-level adjustment. The government then stated, “Judge,

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                                   No. 09-20500

if I could make it clear, I don’t want to—I’m arguing for what I agreed to in the
plea agreement. I’m not arguing for more than that. I’m saying that what he
pled to and what the facts state in the PSR, that is what he should be held to
and not anything below that. I just want the record to be clear about that.”
Sanchez’s counsel replied, “I don’t disagree with the government’s position. . . .
All I’m saying is that . . . the [PSR] on its face does not . . . have sufficient
information to hold him responsible at a three level adjustment. Maybe a two
level, but not a three level.” The district court disagreed with this assessment,
explicitly identifying some of the facts in the PSR that it believed supported a
three-level adjustment. It then stated, “frankly I think [Sanchez] is getting a
break.” Based on its findings, the district court calculated Sanchez’s advisory
sentencing range to be 210 to 262 months of imprisonment, and sentenced
Sanchez to 210 months in prison and five years of supervised release. Sanchez
filed a timely notice of appeal.
                                       II.
      Sanchez raises three issues on appeal: (1) whether his appeal waiver was
knowing and voluntary; (2) whether the term “illegal sentence” in his appeal
waiver is ambiguous and thus permits Sanchez to appeal his sentence; and (3)
whether the government violated the plea agreement by not standing mute at
sentencing on the issue of Sanchez’s role in the conspiracy. We need not address
the first two issues because irrespective of his appeal waiver, Sanchez may argue
on appeal that the government breached the plea agreement. See United States
v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (“[W]here the government has
breached . . . a plea agreement, the defendant is necessarily released from an
appeal waiver provision contained therein.”).
      The parties agree that we review for plain error because Sanchez did not
object at sentencing that the government breached its plea agreement. See
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009) (holding that Fed. R. Crim.

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P. 52(b)’s plain error test applies to forfeited claims that the government
breached a plea agreement). To prevail on plain error review, Sanchez must
show (1) error, that is (2) obvious, and (3) affects his substantial rights, meaning
the error “‘affected the outcome of the district court proceedings.’” Id. at 1429
(quoting United States v. Olano, 507 U.S. 725, 736 (1993)). If the first three
prongs are satisfied, we have the discretion to remedy the error if it “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(alteration and internal quotation marks omitted).
      We need not decide in this case whether the government breached the plea
agreement because even assuming that it did, Sanchez’s substantial rights were
not affected. Sanchez has not shown that the government’s assertedly improper
statements affected his sentence. See id. at 1433 n.4 (“When the rights acquired
by the defendant relate to sentencing, the outcome he must show to have been
affected is his sentence.” (internal quotation marks omitted)). Sanchez cites no
evidence that shows he would have received a lighter sentence but for the
government’s statements about his role in the conspiracy. In fact, he does not
even argue that the government’s statements caused him to receive a harsher
sentence. Instead, he makes the categorical assertion that “[t]he interest of
justice and standards of good faith in negotiating plea bargains require reversal
where a plea bargain is breached.” This statement is directly at odds with the
Court’s admonition in Puckett that defendants in Sanchez’s shoes “‘must make
a specific showing of prejudice’” beyond the mere failure of the government to
comply with the terms of the plea agreement. Id. at 1433 (quoting Olano, 507
U.S. at 735). Moreover, the transcript of the sentencing proceeding supports the
conclusion that the government’s statements were inconsequential.             After
explaining its disagreement with defense counsel’s plea for only a two-level,
instead of a three-level, aggravating role adjustment, the district court
commented, “frankly I think [Sanchez] is getting a break.” The district explicitly

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referenced the PSR in explaining the basis for its view. There is therefore no
indication in the record that the government’s statements influenced Sanchez’s
sentence. Sanchez cannot show prejudice.
                                     III.
      Sanchez’s conviction and sentence are AFFIRMED.




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