     Case: 12-50157       Document: 00512171349         Page: 1     Date Filed: 03/12/2013




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

                                                                            FILED
                                                                          March 12, 2013
                                     No. 12-50157
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WILLIAM JOHN MACKEIL,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:11-CR-934-2


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       William Mackeil pleaded guilty, with a written plea agreement, to
conspiracy to transport aliens. 8 U.S.C. § 1324(a)(1)(A)(v)(I), (B)(i). Mackeil
contends that the Government breached his plea agreement by not moving for
a lower sentence reflecting Mackeil’s acceptance of responsibility in the offense.
Mackeil did not object based on a breach of the plea agreement in the district
court and we review therefore only for plain error. See Puckett v. United States,
556 U.S. 129, 135-36 (2009).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50157     Document: 00512171349     Page: 2   Date Filed: 03/12/2013

                                  No. 12-50157

      “Plea bargain agreements are contractual in nature, and are to be
construed accordingly.” United States v. Moulder, 141 F.3d 568, 571 (5th Cir.
1998) (internal quotation marks and citation omitted). “In determining whether
the terms of the plea bargain have been violated, [this] court must determine
whether the government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” United States v. Gonzalez, 309 F.3d 882, 886
(5th Cir. 2002) (internal quotation marks and citation omitted).
      In exchange for Mackeil’s guilty plea, the Government agreed “not [to]
contest any recommended findings in the Pre-Sentence Report that the
applicable guideline offense levels be adjusted to reflect Defendant’s acceptance
of responsibility, as provided by Sentencing Guideline § 3E1.1(a) & (b).” The
agreement further provided that, if the court found that Mackeil was entitled to
the adjustment, and also found that his base offense level before the adjustment
was at least level 16, the Government agreed “to move for the third level
reduction at the time of sentencing based on the defendant’s timely agreement
to plead guilty[.]”
      Because the presentence report did not recommend an adjustment for
acceptance of responsibility, there was no fulfillment of the condition that would
have triggered the Government’s obligation not to oppose a downward
adjustment and to move for an additional acceptance point. See United States
v. Mejia, 24 F.3d 239, 1994 WL 243287, at *1 (5th Cir. May 19, 1994)
(unpublished). Mackeil’s argument on appeal that the Government had a “duty”
to move for a level-reduction for acceptance of responsibility is not a reasonable
understanding of the plea agreement. See Gonzalez, 309 F.3d at 886.
      To the extent Mackeil argues that the district court erred in not granting
him a level reduction for acceptance of responsibility because of an
unadjudicated misdemeanor charge, the argument is barred by the appeal
waiver in his plea agreement.
      The judgment of the district court is AFFIRMED.

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     Case: 12-50157      Document: 00512171349         Page: 3    Date Filed: 03/12/2013

                                      No. 12-50157

HAYNES, Circuit Judge, specially concurring:
       I concur in the determination that Mackiel is not entitled to relief.
However, I disagree with the approach taken by the majority opinion. I would
find the relief sought as to Mackiel’s sentence of imprisonment moot; he sought
no other relief which would, in any event, be considered abandoned by failure to
brief it. Thus, I would dismiss the appeal as moot.
       Mackiel’s appeal is premised on a claim that the Government breached the
plea agreement. “If the Government breaches a plea agreement, the defendant
may seek one of two remedies: specific performance, requiring resentencing
before a different judge; or withdrawal of his guilty plea.” United States v.
Harper, 643 F.3d 135, 139 (5th Cir. 2011). Nowhere in his brief did Mackiel seek
a withdrawal of his plea. Instead, he sought a resentencing. Here, the sentence
consisted of a term of imprisonment and a term of supervised release. Mackiel
has been released from prison and is currently serving his supervised release
term. His challenge to his sentence of imprisonment is therefore moot. United
States v. Rosenblum-Alanis, 483 F.3d 381, 382 (5th Cir. 2007). Although a
challenge to his term of supervised release would not be moot, nowhere in his
brief does he make such a challenge. If he was intending to do so, then I
conclude such a challenge is abandoned for failure to brief it. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, I would not reach the
merits of his breach of plea agreement argument; I would dismiss as moot, since
the only relief he seeks has become moot by passage of time.1




       1
          I cannot understand why Mackiel did not seek to expedite his appeal. At the time
the Government’s brief was filed, Mackiel was only five days away from being released; thus,
by the time this case came to our panel, Mackiel had already been released from prison.

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