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

                                                FILED
                                                                February 18, 2009
                               No. 07-40559
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MARIO URIEL SANCHEZ-ALVAREZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:06-CR-177-3


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Mario Uriel Sanchez-Alvarez appeals his 108-month sentence following his
guilty plea conviction for conspiracy to possess with intent to distribute more
than five kilograms of cocaine. Sanchez-Alvarez pleaded guilty pursuant to a
written plea agreement.    He argues for the first time on appeal that the
Government breached the term in the agreement requiring a recommendation
for a minor role adjustment. He points to the following statement made by the



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                    No. 07-40559

prosecutor at the sentencing hearing: “My -- you know, my gut feeling is there
was more involvement, but I don’t have any evidence to prove that he has
additional involvement beyond his role in repackaging the narcotics at the
location.” Sanchez-Alvarez further asserts that the Government breached the
agreement by not objecting to the probation officer’s characterization of him as
being “more culpable than the other defendants” and that he “had a larger role
within the conspiracy.”
      If a defendant fails to object to an alleged breach in the district court, as
is the case here, review is for plain error. See United States v. Branam, 231 F.3d
931, 933 (5th Cir. 2000).1 “A defendant asserting a breach bears the burden of
proving, by preponderance of the evidence, the underlying facts establishing a
breach.”   United States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995) (footnote
omitted). This court applies general principles of contract law in interpreting a
plea agreement. United States v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999).
“[T]his court considers whether the government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.” Id. (quotation marks
and citation omitted).
      Sanchez-Alvarez has not shown a breach of the plea agreement. As the
Government argues, Sanchez-Alvarez takes the prosecutor’s statement out of
context. A review of the sentencing transcript reflects that the statement was
made during a discussion at sentencing of whether Sanchez-Alvarez qualified for
a decrease pursuant to the “safety-valve” provision.            As for a minor role
adjustment, the sentencing transcript reflects that the prosecutor advised the
district court that there was a stipulation at the rearraignment that the


      1
        We note that the United States Supreme Court has granted certiorari on the
question of what standard of review applies to a forfeited claim that the government
breached a plea agreement. United States v. Puckett, 505 F.3d 377 (5th Cir. 2007), cert.
granted, 171 L. Ed. 2d 932 (Oct. 1, 2008). Because we find no breach under any
standard, we conclude that the standard of review question does not control the
outcome of this case.

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Government would recommend a minor role adjustment. In support of that
recommendation, the prosecutor stated that it was the Government’s belief that
Sanchez-Alvarez did not have a “supervisor role” and that “[h]is role was limited
to that of repackaging the cocaine.”         The district court’s rejection of the
Government’s recommendation does not constitute a breach of the plea
agreement. Rather, the transcript reflects that the Government’s conduct was
“consistent with the defendant’s reasonable understanding of the agreement.”
See Cantu, 185 F.3d at 304. Accordingly, Sanchez-Alvarez has failed to establish
a breach of the plea agreement that is plain, obvious, or affected his substantial
rights. See Marek, 238 F.3d at 315.
      Sanchez-Alvarez also argues that the district court erred in not granting
him an adjustment pursuant to U.S.S.G. § 3B1.2(b) based on his role as a minor
participant in his offense of conviction. The revised presentence report reflects
that one of Sanchez-Alvarez’s codefendants stated that Sanchez-Alvarez was
sent “to oversee the cocaine delivery and possibly take possession of it.”
Although Sanchez-Alvarez objected to the accuracy of this statement, he
presented no rebuttal evidence in support of his objection. Thus, the district
court did not clearly err in relying on the revised presentence report. See United
States v. Alford, 142 F.3d 825, 831-32 (5th Cir 1998). In addition, Sanchez-
Alvarez acknowledged that he agreed to help repackage a large quantity of
cocaine, which was a step leading to its further distribution. Because the district
court’s finding that Sanchez-Alvarez was not a minor participant “is plausible
in light of the record read as a whole,” we conclude that the district court did not
clearly err in finding that he was not entitled to this reduction. See United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
      Sanchez-Alvarez further argues that the district court erred by enhancing
his base offense level by two levels for possession of a dangerous weapon. See
U.S.S.G. § 2D1.1(b)(1). Sanchez-Alvarez asserts he was unaware of the presence
of any firearms in the house where the cocaine was found.           A defendant’s

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guidelines offense level may be enhanced under § 2D1.1(b)(1) if the possession
of a firearm by a coconspirator was reasonably foreseeable. See United States
v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006). Because there is evidence that
Sanchez-Alvarez’s codefendant possessed a firearm while he and Sanchez-
Alvarez were engaged in repackaging a large quantity of cocaine, the district
court did not clearly err by finding that Sanchez-Alvarez’s codefendant’s
possession of a dangerous weapon was reasonably foreseeable. See United States
v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997); United States v. Castillo, 77 F.3d
1480, 1498 (5th Cir. 1996). Furthermore, the record reflects that the district
court complied with Rule 32 of the Federal Rules of Criminal Procedure by
considering the relevant factors and adopting the revised presentence report’s
facts regarding the dangerous weapon enhancement.         See United States v.
Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992). Accordingly, the judgment of the
district court is AFFIRMED.




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