                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 11, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20811
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DONOVAN SEGISMOND HEWITT,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 4:04-CR-170-ALL
                      --------------------

Before JOLLY, JONES and OWEN, Circuit Judges.

PER CURIAM:*

     Donovan Segismond Hewitt appeals the sentence imposed

following his guilty plea conviction for illegal reentry

following deportation.   Hewitt was sentenced to a term of

imprisonment of 76 months, to be followed by a three-year term of

supervised release.

     Hewitt argues that he is entitled to have his sentence

vacated and to be resentenced because the Government breached its

oral plea agreement by opposing his motion for a downward


     *
       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this opinion should not be published and is not precedent except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.
                           No. 04-20811
                                -2-

departure.   He contends that the prosecutor who was present at

his rearraignment stated that the Government would not oppose

such a motion.   The Government concedes that the plea agreement

was unintentionally breached and does not oppose a remand for

resentencing.

     Where, as here, there was no objection to the breach of the

plea agreement, the issue is reviewed for plain error.     United

States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).    When

reviewing for plain error, this court will consider if there was

an error, the error was clear and obvious, and it affected a

substantial right.   United States v. Olano, 507 U.S. 725, 732-34

(1993).   Further, because review of a plain error is permissive,

rather than mandatory, this court will exercise its discretion to

correct the error only if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”     Id. at

732 (internal quotation marks, alteration, and citations

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. Gonzales,

309 F.3d 882, 886 (5th Cir. 2002)(citation omitted).   The

Government breached the plea agreement in this case by opposing

the motion for a downward departure despite the initial

prosecutor’s acquiescence to defense counsel’s oral and written
                              No. 04-20811
                                   -3-

statements that the Government had agreed not to oppose the

motion.     Id.   This error was both clear and obvious and the

Government’s failure to fulfill promises made in the plea

agreement affected the substantial rights of Hewitt and the

fairness, integrity, and public reputation of judicial

proceedings.      See Olano, 507 U.S. at 732-34; see United States v.

Goldfaden, 959 F.2d 1324, 1327-29 (5th Cir. 1992).     Hewitt’s

sentence is VACATED and the case is REMANDED to the district

court for resentencing.

     Hewitt’s argument that 8 U.S.C. § 1326(b) is

unconstitutional on its face and as applied in his case in light

of Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000) is without

merit.    Hewitt acknowledges that Almendarez-Torres v. United

States, 523 U.S. 224 (1998) forecloses his argument but wishes to

preserve it for further review.

     Apprendi did not overrule Almendarez-Torres.      See Apprendi,

530 U.S. at 489-90; United States v. Mancia-Perez, 331 F.3d 464,

470 (5th Cir.), cert. denied, 540 U.S. 935 (2003).      This court

must follow the precedent set in Almendarez-Torres “unless and

until the Supreme Court itself determines to overrule it.”

Mancia-Perez, 331 F.3d at 470 (internal quotation and citation

omitted).    Therefore, this court is bound by Almendarez-Torres,

and this argument must fail.      See Mancia-Perez, 331 F.3d at 470.

     SENTENCE VACATED; REMANDED FOR RESENTENCING.
