         United States Court of Appeals
                    For the First Circuit


No. 01-1298

                        UNITED STATES,

                           Appellee,

                              v.

              ELLIOT GIRAUD-PINEIRO, A/K/A PIVI,

                     Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. José Antonio Fusté, U.S. District Judge]


                            Before

                      Selya, Circuit Judge,
                  Stahl, Senior Circuit Judge,
              and Doumar,* Senior District Judge.



     Howard M. Srebnick, Christine Ng, and Black, Srebnick &
Kornspan, P.A., on brief for appellant.
     Nelson Perez-Sosa, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, and Jorge E. Vega-
Pacheco were on brief for appellee.




                       October 19, 2001
* Of the Eastern District of Virginia, sitting by designation.
          STAHL, Senior Circuit Judge.        The defendant, Elliot

Giraud-Pineiro, pled guilty to conspiracy to possess cocaine

with intent to distribute and conspiracy to finance illegal

narcotics transactions.     He now appeals his sentence. For the

following reasons, we affirm.

                                  I.

          In a multi-count indictment that named numerous co-

defendants, Giraud-Pineiro was charged in three counts: Count

One alleged that the defendants conspired to possess with intent

to distribute more than five kilograms of cocaine and more than

one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1)

and 846; Count Two alleged that the defendants conspired to

finance these illegal transactions in violation of 18 U.S.C. §

1956; and Count Six was a forfeiture count.

          Defendant initially pled not guilty to these charges.

On May 17, 2000, Giraud-Pineiro and the government entered into

a plea agreement, in which he agreed to plead guilty to the

offenses charged in Counts One and Two of the indictment.           The

plea agreement states that the defendant was originally indicted

for   possessing   more   than   five   kilograms   of   cocaine,   and

incorporates a factual statement that the conspiracy involved

hundreds of kilograms of cocaine and that the defendant's role

was to finance the cocaine shipments and manage the financial


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transactions so as to conceal the illegal proceeds.              In return

for his guilty plea, the government agreed that the defendant

would   “be    held   accountable   in     determining     the   applicable

guideline range to at least three point five (3.5) but less than

five (5) kilograms of cocaine.”        This stipulation had the effect

of decreasing defendant's penalty exposure from ten years to

life imprisonment, see 21 U.S.C. § 841(b)(1)(A), to a range of

five to forty years, see 21 U.S.C. § 841(b)(1)(B). In the plea

agreement, it was agreed that the applicable offense level for

the more serious count in the indictment (Count One) would be

30,1 translating into a sentencing range of 97 to 121 months for

a defendant with no prior criminal history.                Based on this

calculation, the government agreed that it would recommend to

the Court a sentence of 120 months.2

          At    the   change-of-plea      hearing,   the   district   court

advised the defendant about the consequences of pleading guilty,

and informed him that, as Count One of the indictment reads, it

carried a mandatory minimum term of ten years to a maximum of


    1     This offense level was calculated by using a base
offense level of 30, applicable for the 3.5 to less than five
kilogram quantity, minus three levels for acceptance of
responsibility, plus three levels for defendant's role in the
offense.
    2     The plea agreement left defendant free to argue for a
sentence at the lower end of the applicable guideline range.


                                    -4-
life imprisonment.        However, the district court specifically

noted that the plea agreement stated that the government would

only attribute to defendant an amount of cocaine of at least 3.5

kilograms but less than five kilograms.            The defendant confirmed

that this was his understanding.            Satisfied that the decision of

the defendant was made knowingly and voluntarily, the district

court accepted the change of plea.

           The probation office's presentence report recognized

that the defendant had pled guilty to the offenses listed in the

indictment, but that the plea agreement stipulated to a lesser

quantity of drugs.        The report also confirmed the government's

calculation of the base offense level (30) and criminal history

category (I), indicating a guideline range of 97 to 121 months

imprisonment, with an applicable five-year mandatory minimum.

The district court accepted the recommendation of the probation

office and adopted its calculations as the applicable guideline

range in this case.        At sentencing, as agreed, the government

recommended that the defendant be sentenced to a term of 120

months.        The defendant was then sentenced to a term of 120

months    on    Counts   One   and   Two,    to   be   served   concurrently,

followed by five years of supervised release.

                                      II.




                                      -5-
         Giraud-Pineiro appeals his sentence, claiming that the

prosecutor breached the plea agreement by suggesting that he

was, in fact, responsible for “hundreds” of kilograms of drugs,

directly contradicting the amount stipulated by the parties.

Defendant emphasizes that during the sentencing hearing the

government claimed that he had pled guilty to more than five

kilograms of cocaine, and, as a result, the court sentenced him

to the mandatory minimum of 120 months for the sale of more than

five kilos.   As a result, Giraud-Pineiro insists that he is

entitled to a new sentencing hearing before a different judge.



         This court exercises plenary review over the issue of

whether the government has breached a plea agreement.         See

United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995).   However,

we review only for plain error when the defendant has knowledge

of the conduct that purportedly amounts to a breach of the plea

agreement, but nevertheless fails to bring it to the attention

of the district court, as is the case here.    See United States

v. Saxena, 229 F.3d 1, 5 (1st Cir. 2000) (citing, inter alia,

Johnson v. United States, 520 U.S. 461, 466 (1997)).

         We are satisfied that there was no breach of the plea

agreement in this case.   The government fulfilled its obligation

under the plea agreement when it recommended a sentence of 120


                               -6-
months.   Even though Giraud-Pineiro pled guilty to Count One of

the indictment, which stated that the offense involved more than

five kilograms of cocaine, the judge made clear at the change-

of-plea   hearing    that   he   would   only   hold   the   defendant

responsible for an amount greater than 3.5 kilograms but less

than five kilograms in accordance with the joint stipulation.3

Likewise, at the sentencing hearing, the judge emphasized that

he was only taking into account the lesser amount of drugs, as

reflected in the plea agreement, when making his sentencing

determination.4     Nothing in the transcript suggests that the

sentencing judge believed that the statutory mandatory minimum

of ten years was applicable to defendant's case.         Nor did the

sentencing judge indicate that he was influenced by the fact

that, in the absence of the stipulation, the defendant would

have been subject to the ten-year mandatory minimum.         The trial

judge simply accepted the recommendation of the government,




    3     (“Regarding guidelines, you're going to be held liable
for at least 3.5, but less than five kilos of cocaine. . . .
There is together to be a recommendation that you be sentenced
in both cases to 120 months.”).
    4     (“[Defendant] stipulated to an amount of drug [sic],
and he's going to walk out the door sentenced to that amount of
drugs. . . .”);        (“[Defendant] stipulated that he was
responsible for at least 3.5 but less than 5 kilos of cocaine,
and that gives us a base level of 30 under guideline section
2D1.1.“).

                                 -7-
apparently because he believed that a sentence at the high end

of the guideline range was appropriate.

                             III.

         Having found no error in the proceedings below, we

hereby affirm the sentence imposed by the district court.

         Affirmed.




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