     Case: 16-41300      Document: 00514085128         Page: 1    Date Filed: 07/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-41300                                   FILED
                                  Summary Calendar                             July 24, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CESAR RODRIGUEZ-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:16-CR-178-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Cesar Rodriguez-Diaz appeals his guilty-plea conviction and sentence for
possessing with the intent to distribute more than 100 kilograms of marijuana.
He contends he pleaded guilty pursuant to a plea agreement that was breached
by the Government. He asks this court to either enforce the alleged plea
agreement or vacate his conviction and sentence on the grounds that his plea
agreement was void for lack of consideration and frustration of purpose.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41300

      “When a plea rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled.” Santobello v. New York, 404
U.S. 257, 262 (1971). If the Government breaches the plea agreement, a
defendant may seek withdrawal of his guilty plea or specific performance of
the plea agreement.     Puckett v. United States, 556 U.S. 129, 137 (2009).
However, Rodriguez-Diaz, as the party alleging a breach of the plea agreement,
has the burden of proving the underlying facts establishing a breach by a
preponderance of the evidence. United States v. Cruz-Romero, 848 F.3d 399,
401 (5th Cir.), cert. denied, 137 S. Ct. 1606, (2017).
      Because Rodriguez-Diaz failed to preserve his challenges to the alleged
plea agreement for appellate review by raising his arguments in the district
court, we will review his claims only for plain error. See Puckett, 556 U.S. at
135-36. To prevail on plain-error review, Rodriguez-Diaz must show that an
error occurred, that the error was clear or obvious, and that the error affected
his substantial rights. Id. at 135. If those factors are established, the decision
to correct the error is within the court’s discretion, which will not be exercised
unless “the error seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” Id. (internal quotation marks and citation omitted).
      Although Rodriguez-Diaz points to some inconsistent statements made
by the probation officer and the parties in his case, he has not met his burden
of proving the existence of a plea agreement. See Cruz-Romero, 848 F.3d at
401; United States v. Ammirato, 670 F.2d 552, 554-55 (5th Cir. 1982). The
record as a whole, including Rodriguez-Diaz’s own statement under oath,
indicates that Rodriguez-Diaz pleaded guilty without a plea agreement.
Absent a showing that a plea agreement existed, Rodriguez-Diaz’s remaining
arguments, all of which pertain to the Government’s compliance with, or the



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                                   No. 16-41300

validity of, the alleged plea agreement, lack merit. However, Rodriguez-Diaz’s
arguments would fail even if, for purposes of argument, we accepted Rodriguez-
Diaz’s allegations as true and assumed that the alleged plea agreement did
exist.
         Rodriguez-Diaz’s assertion that the alleged plea agreement shielded him
from being subject to the statutorily required minimum sentence in his case is
speculative and unsupported by the record. Accordingly, he has not shown that
the Government breached the alleged agreement by failing to ensure that he
was sentenced at the low end of his otherwise applicable sentencing guidelines
range.
         Because Rodriguez-Diaz has not shown that avoiding application of the
statutory minimum sentence was a basic assumption underlying the plea
agreement, he has not shown that his alleged plea agreement is void due to the
doctrine of frustration of purpose. See United States v. Moulder, 141 F.3d 568,
571 (5th Cir. 1998).
         Finally, Rodriguez-Dias cannot show clear or obvious error with regard
to his claim that his alleged plea agreement is void because he received no
benefit in exchange for his guilty plea.          This court has never held that
consideration is required to support a valid plea agreement. See United States
v. Smallwood, 920 F.2d 1231, 1239 (5th Cir. 1991); Smith v. Estelle, 562 F.2d
1006, 1008 (5th Cir. 1977); see also United States v. Montemayor, 668 F. App’x
96, 97 (5th Cir. 2016).
         The judgment of the district court is AFFIRMED.




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