     Case: 16-40062      Document: 00513769021         Page: 1    Date Filed: 11/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-40062                                   FILED
                                  Summary Calendar                         November 22, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALBERTO ALVAREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-732-2


Before KING, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Alberto Alvarez appeals his guilty plea conviction for aiding and abetting
possession with intent to distribute more than 100 kilograms of marijuana and
his sentence of 60 months of imprisonment and four years of supervised
release. He argues that the plea agreement is void due to the Government’s
breach, lack of consideration, or frustration of purpose and that the factual




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40062      Document: 00513769021       Page: 2    Date Filed: 11/22/2016


                                    No. 16-40062

basis is insufficient to support the guilty plea or renders the sentence
unconstitutional.
      Alvarez’s claims of error are reviewed for plain error because he failed to
raise them in the district court. See Puckett v. United States, 556 U.S. 129, 135
(2009). To show plain error, Alvarez must show that the error was clear or
obvious and affects his substantial rights. See id. If he makes such a showing,
this court has the discretion to correct the error but only if it “‘seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.’”            Id.
(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)).
      The Government did not breach the plea agreement because it was not
reasonable for Alvarez to have understood that the plea agreement shielded
him from the statutory minimum sentence. See United States v. Pizzolato, 655
F.3d 403, 409 (5th Cir. 2011). The plea agreement is not clearly or obviously
void for lack of consideration as we have never held that consideration is
required to support a valid plea agreement. See Olano, 507 U.S. at 734. The
doctrine of frustration of purpose is inapplicable because Alvarez fails to show
that avoiding the statutory minimum sentence was a basic assumption
underlying the plea agreement. See United States v. Moulder, 141 F.3d 568,
571 (5th Cir. 1998). Alvarez fails to show that the factual basis was clearly or
obviously insufficient to support his guilty plea or affected his substantial
rights. See Puckett, 556 U.S. at 135. He also fails to show that his sentence is
clearly or obviously unconstitutional. See id.; Olano, 507 U.S. at 734.
      The judgment of the district court is AFFIRMED.




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