     Case: 10-41136     Document: 00511609818         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 10-41136
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE MANUEL HERNANDEZ-GARCIA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-675-1


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Following his guilty-plea conviction and sentence on one count of
transportation of illegal aliens for purpose of commercial advantage or private
financial gain, Jose Manuel Hernandez-Garcia contends: the Government
breached the plea agreement by opposing at sentencing his request for an
acceptance-of-responsibility adjustment.
        “Plea bargain agreements are contractual in nature, and are to be
construed accordingly.” United States v. Moulder, 141 F.3d 568, 571 (5th Cir.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                   No. 10-41136

1998) (citation and internal quotation marks omitted). “In determining whether
the terms of the plea bargain have been violated, [our] 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) (citation and internal quotation marks omitted). Our court
reviews a breach-of-plea-agreement claim de novo; the district court’s factual
findings are reviewed for clear error. United States v. Davis, 393 F.3d 540, 546
(5th Cir. 2004).
      In exchange for Hernandez’ plea, the Government agreed, inter alia, “[a]t
the time of sentencing, . . . not to oppose defendant’s anticipated request . . . that
he/she receive a two (2) level downward adjustment pursuant to U.S.S.G. Section
3E1.1(a) should the defendant accept responsibility as contemplated by the
Sentencing Guidelines”. (Emphasis added.) But, in the light of Hernandez’
assault on his co-defendant, the district court determined that Hernandez had
obstructed justice and was, therefore, not entitled to an acceptance-of-
responsibility adjustment. The court also determined Hernandez had not given
truthful testimony at the sentencing hearing and this was a further basis for
denying the adjustment. Hernandez does not challenge on appeal the district
court’s determinations that he obstructed justice and gave untruthful testimony.
      Guidelines § 3E1.1 provides for a decrease of up to three levels if
defendant accepts responsibility for his offense. U.S.S.G. § 3E1.1(a). “If a
defendant enters a guilty plea prior to trial, truthfully admits the conduct
comprising the offense, and admits, or at least does not falsely deny, any
additional relevant conduct for which he is accountable, the court may find
significant evidence of the defendant’s acceptance of responsibility.” United
States v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir. 2003); see U.S.S.G. §
3E1.1, comment (n.3). On the other hand, and understandably, conduct such as
obstructing justice “ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct”. U.S.S.G. § 3E1.1, comment (n.4).

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                                 No. 10-41136

      Because Hernandez did not accept responsibility under the Guidelines, the
condition triggering the Government’s obligation not to oppose Hernandez’
request for an adjustment was not fulfilled; the Government was, therefore, not
in breach of the agreement by opposing his request for an acceptance-of-
responsibility adjustment. See United States v. Mejia, No. 93-2611, 1994 WL
243287, *1 (5th Cir. May 19, 1994) (unpublished); see also 5TH CIR. R. 47.5.3
(unpublished opinion before 1996 is precedential). Hernandez’ contention–that
the Government remained contractually bound by the plea agreement because
it failed to follow the procedure established by the agreement to determine if a
breach by Hernandez had occurred–is unavailing. Because a breach of the
agreement by Hernandez was not at issue in district court, the provision on
which he relies was not implicated.
      AFFIRMED.




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