                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                           UNITED STATES COURT OF APPEALS
                                                                                         August 9, 2004
                                    FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                           ____________                                     Clerk
                                           No. 03-41338
                                           ____________


               UNITED STATES OF AMERICA,


                                               Plaintiff - Appellee,

               versus


               MARIA AGUILERA,


                                               Defendant - Appellant.



                           Appeal from the United States District Court
                                For the Eastern District of Texas
                                    USDC No:9:02-CR-49-1



Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       After making a plea agreement with the Government, Maria Aguilera pleaded guilty to one

count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Aguilera

appeals the sentence imposed by the district court. She claims that her sentence was imposed in

breach of her plea agreement and in violation of U.S. SENTENCING GUIDELINES MANUAL § 1B1.8


       *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
because the district court relied upon self-incriminating evidence that Aguilera provided pursuant to

her plea agreement. Although the district court relied, at least in part, on Aguilera’s self-incriminating

statements, in this case the court’s reliance did not breach the plea agreement or violate § 1B1.8.

          Aguilera was the passenger in a sports-utility vehicle that was stopped for a traffic violation.

The vehicle was registered in Aguilera’s name. The police officer received consent to search the

vehicle and discovered an electronically-controlled secret compartment behind the rear seat that

contained approximately twenty kilograms of cocaine. Based on these facts Aguilera chose to plead

guilty.

          As part of her plea agreement, Aguilera agreed to “provide complete and truthful information

and testimony . . . in regards to all facts that [Aguilera] knows surrounding illegal activities in the

Eastern District of Texas and elsewhere.” The plea agreement includes a penalty if Aguilera failed

to “completely and truthfully” comply with that requirement. The agreement states that failure to

comply could “result in this agreement becoming unenforceable, the prosecution of [Aguilera] for any

federal offense [Aguilera] may have committed, and the use by the Government of [Aguilera]’s

statements made pursuant to this agreement against [Aguilera] in any proceeding.” In return the

Government agreed “not to prosecute [Aguilera] . . . for any offense,” other than the possession

charge listed in the plea agreement, “arising from the facts and circumstances of the charges in this

case and known to the United States Attorney or derived from information received . . . pursuant to

this agreement.”

          The presentence report (“PSR”) assigned a base offense level of 34, which was reduced to

29 after reductions for meeting the safety-valve criteria and for acceptance of responsibility. The PSR

concluded that Aguilera was not entitled to a mitigating role reduction under U.S. SENTENCING


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GUIDELINES MANUAL § 3B1.2 because she was to receive $8,000 for transporting the drugs in this

case. Aguilera objected to the PSR, arguing that she should be awarded a minor role reduction under

U.S.S.G. § 3B1.2(b) because she was only a drug courier. In the probation officer’s response, he

recommended against granting Aguilera a minor role reduction because she had “admitted to

transporting controlled substances in the same manner on two previous occasions,” and that “[w]hile

[Aguilera’s] role in the offense was different than that of other participants, it was essential in carrying

out the conspiracy.” The government learned of the $8,000 payment from Aguilera’s statement to

the probation officer and learned of her previous transportation of controlled substances from a

statement she made during debriefing. The government does not contend that it knew either of these

facts before Aguilera made these cooperation statements.

        At her sentencing hearing Aguilera again argued that she should receive a § 3B1.2(b) minor

role reduction. The Government responded to Aguilera’s argument as follows:

                In order to grant the additional two points for minor participant, as the
                Court knows, that’s a fact intensive determination, and in this case
                we’re t alking about 20 kilos of cocaine hidden in an electronically
                controlled compartment behind the rear seat of a vehicle that was
                registered to Ms. Aguilera in this case. And she was, in addition to
                this, to receive $8,000 for transporting the cocaine from Houston to
                Illinois.

                So we believe because of those facts she would not fall into the
                category of a minor participant

After this statement, the court noted “that the Probation Officer in his respon[se] said [Aguilera] has

admitted to transporting controlled substance in the same manner on previous occasions.” The

Government replied “That is correct, Your Honor, on one previous occasion she has done this

before.” Although Aguilera’s trial counsel did not object to these statements, he did reply that “with



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regard to the additional transaction that the Probation Department pointed out, . . . that was

discovered through debriefing, not debriefing for the safety valve, . . . debriefing with the Assistant

U.S. Attorney.” Following this discussion, the district court overruled Aguilera’s objection regarding

the § 3B1.2 mitigating role reduction and sentenced her to 87 months imprisonment. The probation

officer calculated that Aguilera’s sentencing range would have been 46 to 57 months if she received

a § 3B1.2 reduction.

       As it is conceded that Aguilera’s trial counsel did not object to the statements regarding the

$8,000 payment or her previous transportation of controlled substances, our review is for plain error.

See United States v. Branam, 231 F.3d 931, 933 (5th Cir. 2000). This standard requires that we find

1) and error has occurred; 2) that the error is plain; and 3) that the error must affect a substantial

right. United States v. Olano, 507 U.S. 725, 732-34 (1993). Nevertheless, even if we find plain

error, “we will not exercise our discretion to correct a forfeited error unless it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Branam, 231 F.3d at 933 (citing

Olano, 507 U.S. at 735-36).

       Aguilera’s first argument on appeal is that the use of her cooperation statements to determine

her sentence was a breach of her plea agreement. “The Government’s breach of a plea agreement can

constitute plain error.” Branam, 231 F.3d at 933 (internal quotations and citations omitted). “In

determining whether the terms of the plea bargain have been violated, the court must determine

whether the government’s conduct is consistent with the parties’ reasonable understanding of the

agreement.” United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994) (internal quotations and

citations omitted). As the party alleging a breach of the plea agreement, Aguilera bears the burden

of proving the facts establishing the breach by a preponderance of the evidence. See id. We apply


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the general principles of contract law to interpret the terms of a plea agreement. See Hentz v.

Hargett, 71 F.3d 1169, 1173 (5th Cir. 1996). “If a breach has in fact occurred, the sentence must

be vacated without regard to whether the judge was influenced by the government’s actions.” United

States v. Saling, 205 F.3d 764, 766-67 (5th Cir. 2000).

       A reasonable understanding of the plea agreement’s language permits the use of Aguilera’s

cooperation statements to determine her sentence. The only explicit limitation placed upon the

Government by the plea agreement is that Aguilera cannot be prosecuted on the basis of information

it received from Aguilera pursuant to the plea agreement. The Government has complied with this

limitation. Agreeing not to prosecute Aguilera on the basis of information obtained pursuant to the

plea agreement, however, is very different from agreeing not to use that information to determine

Aguilera’s sentence for the crime to which she pleaded guilty. Even Aguilera concedes that the plea

agreement does not explicitly state that her cooperation statements would not be used to determine

her sentence. Instead Aguilera argues that this limitation is implied by the plea agreement.

       According to Aguilera, the plea agreement implies that her cooperation statements cannot be

used to determine her sent ence because of the penalty imposed by that agreement if she fails to

comply with its terms. Aguilera argues that because her plea agreement explicitly permits the

Government to use her cooperation statements against her “in any proceeding” if she fails to “provide

complete and truthful testimony” the plea agreement implies the converse, that these statements

would not be used against her in any proceeding if she complies with the plea agreement’s terms.

Aguilera claims that using her cooperation statements to determine her sentence violates this implied

limitation, and is a breach of her plea agreement.

       Aguilera’s plea agreement does not contain an implied prohibition on the use of her


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cooperation statements to determine her sentence. The plea agreement contains a clause stating “that

no other promise has been made or implied by either [Aguilera] or the Government.” Thus, a

reasonable understanding of the plea agreement does not include an implied limitation upon the

Government’s use of Aguilera’s cooperation statements. In addition, the potential use of Aguilera’s

cooperation statements in other proceedings is one of a number of penalties that the plea agreement

imposes upon her if she fails to comply with the agreement’s terms. The language of this penalty

provision does not indicate that the parties intended it to serve as a limitation upon the Government.

Nor does this penalty language indicate that the parties intended this penalty to benefit Aguilera by

excluding information relevant to the determination of her sentence. If the parties had intended the

plea agreement to prohibit the use of Aguilera’s cooperation statements when determining her

sentence they could have done so explicitly or by referring to U.S.S.G. § 1B1.8. The fact that the

parties chose not to do so in this case indicates that they did not intend to prohibit the use of these

statements when determining Aguilera’s sentence. The Government did not breach the plea

agreement in this case.

       Aguilera also claims that the use of her cooperation statements to determine her sentence was

a violation of U.S.S.G. § 1B1.8. Under § 1B1.8, when a defendant agrees to provide information

concerning the unlawful activities of others, and “as part of that cooperation agreement the

government agrees that self-incriminating information provided pursuant to the agreement will not

be used against the defendant, then such information shall not be used in determining the applicable

guideline range, except to the extent provided in that agreement.” U.S.S.G. § 1B1.8. The guideline

commentary indicates that § 1B1.8 only applies when there is a cooperation agreement relating “to

the provision of information concerning the unlawful activities of others.” Id. at cmt. n. 6. The scope


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of § 1B1.8 includes self-incriminating statements made to a probation officer after entering into this

type of cooperation agreement. Id. at cmt. n. 5. As part of her plea agreement Aguilera agreed to

provide information concerning the unlawful act ivities of others. The plea agreement does not

contain a specific reference to § 1B1.8, but Aguilera argues that the Government’s agreement not to

prosecute her based upon her self-incriminating statements is enough to trigger § 1B1.8.

        In United States v. Marsh, 963 F.2d 72 (5th Cir. 1992), the defendant pleaded guilty and

agreed to fully cooperate with the Government. Id. at 73. “In exchange, the Government agreed that

Marsh would ‘not be prosecuted further for activities that occurred or arose out of [his] participation

in the crimes charged in the Information that are known to the government at this time.’” Id.

(alteration in original). Although this plea agreement did not explicitly invoke § 1B1.8, we held that

the district court violated § 1B1.8 because it “improperly considered information that Marsh provided

to the probation officer in reliance on the plea agreement.” Id. at 74.

        Marsh is distinguishable from the facts of this case. The sentence in Marsh was reviewed de

novo while our review in this case is for plain error. Moreover, in Marsh the Government conceded

that § 1B1.8 applied to the information that Marsh gave to the probation officer. Id. Here the

Government argues that § 1B1.8 does not apply to Aguilera’s cooperation statements and the plea

agreement itself contains neither an express nor an implied understanding that § 1B1.8 applied those

statements. Finally, the cooperation statements in Marsh were used to enhance the defendant’s

sentence. Id. at 73. Aguilera’s cooperation statements, in contrast, were only part of the evidence

that the district court considered when deciding whether she should receive a§ 3B1.2(b) minor role

reduction. To receive a minor role reduction, the defendant must demonstrate that they are

“substantially less culpable” than other participants in the criminal enterprise in light of all relevant


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conduct. United States v. Garcia, 242 F.3d 593, 597-98 (5th Cir. 2001). Consideration of a

defendant’s cooperation statement in response to her assertion that she was a minor participant is very

different from actively using those statements to enhance the defendant’s sentence. Thus, Marsh does

not control in this case.

        Aguilera also cites a number of other opinions to support her claim that the use of her self-

incriminating statements in this case violated § 1B1.8. In each of these cases, however, the plea

agreements explicitly provided that any cooperation statements could not be used to determine a

defendant’s sentence pursuant to § 1B1.8. See, e.g., United States v. Gonzalez, 309 F.3d 882, 883

(5th Cir. 2002) (plea agreement contained a provision that explicitly stated § 1B1.8 applied); see also

United States v. Washington, 146 F.3d 219, 221 (4th Cir. 1998) (holding that use of cooperation

statements to deny § 3B1.2 minor role reduction violated § 1B1.8 in a case where the plea agreement

explicitly provided that § 1B1.8 applied to these statements). These cases are not controlling because

the parties in this case chose not to include any reference to § 1B1.8 in the plea agreement.

        It is arguable that § 1B1.8 permits consideration of Aguilera’s cooperation statements because

that guideline permits the use of those statements to the extent provided in the plea agreement.

U.S.S.G. § 1B1.8(a). In this case the plea agreement is strictly limited to its terms and states that no

implied promises were made in that agreement. The only explicit limitation imposed upon the use of

Aguilera’s cooperation statements was the Government’s promise not to prosecute her based upon

those statements. The plea agreement contains neither an explicit nor an implicit promise not to use

the cooperation statements to determine Aguilera’s sentence. Consequently, the use of these

statements is arguably permitted by § 1B1.8, and even if consideration of these statements was an

error it does not rise to the level of plain error because the error is not clear or obvious. See Olano,


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507 U.S. at 732-34 .

        Even if the district court’s consideration of Aguilera’s cooperation statements when it

determined her sentence is a violation of § 1B1.8 that constitutes plain error, we still decline to

exercise our discretion to correct this forfeited error because it does not seriously affects the fairness,

integrity, or public reputation of the judicial proceeding. United States v. Olano, 507 U.S. 725, 735-

36 (1993). The district court only considered Aguilera’s cooperation statements when evaluating

her claim that she was a minor participant in this criminal enterprise. Aguilera is attempting to secure

a § 3B1.2 minor role reduction while using § 1B1.8 to prevent the district court from considering

information relevant to that determination. Although § 1B1.8 seems to protect statements made by

the defendant to the government and the probation officer, it clearly does not condone the

presentation of half truths to the district court. Moreover, Aguilera’s cooperation statements were

only part of the evidence considered when determining whether Aguilera had a minor role. The other

evidence, including the fact that the vehicle containing the electronically sealed compartment used

to transport the drugs was registered to Aguilera, indicates that Aguilera did not have a minor role.

Therefore, the fact that Aguilera’s cooperation statements were part of the evidence before the

district court when it made its § 3B1.2 minor role determination does not affect the fairness or

integrity of that determination.

        The plea agreement in this case is reasonably understood to permit the use of Aguilera’s self-

incriminating statements to determine her sentence guideline range, and the use of those statements

was not a breach of the plea agreement. The use of Aguilera’s cooperation statements did not violate

§ 1B1.8 because the terms of the plea agreement do not prohibit the use of those statements in

sentencing. Moreover, even if the use of Aguilera’s cooperation statements was a plain error


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violation of § 1B1.8, we decline to exercise our discretion to correct the forfeited error because it did

not affect the fairness and integrity of the sentencing determination. For the above reasons we

AFFIRM the sentence imposed by the district court.




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