     Case: 12-51022       Document: 00512362061         Page: 1     Date Filed: 09/04/2013




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

                                                                            FILED
                                                                        September 4, 2013
                                     No. 12-51022
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ADRIAN NUNEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2465-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Adrian Nunez appeals his conviction and 264-month sentence for
conspiracy to possess with the intent to distribute five or more kilograms of
cocaine. Nunez pleaded guilty pursuant to a plea agreement that contained a
stipulation by the parties that Nunez should be held responsible for 16
kilograms of cocaine for sentencing purposes. On appeal, he contends that his
guilty plea was not knowing or voluntary because the district court failed to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51022

admonish him that the court was not bound to the stipulation as set forth in the
plea agreement.
      Because Nunez did not object on this ground in the district court, we
review for plain error. See United States v. Vonn, 535 U.S. 55, 58-59 (2002). To
prevail on plain-error review, a defendant must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If these factors are established, the decision to correct
the forfeited error is within our sound discretion, which will not be exercised
unless the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.
      Whether a plea is knowing looks to whether the defendant understands
the direct consequences of his plea, while voluntariness looks to, inter alia,
whether the plea was induced by threats or improper promises. United States
v. Hernandez, 234 F.3d 252, 255 & n.3 (5th Cir. 2000). In the instant case, the
district court explained the maximum prison term to Nunez, which was life
imprisonment. The court also reviewed the stipulation regarding the amount of
cocaine for which Nunez would be held responsible and advised Nunez that he
could receive a sentence more severe than the guidelines range. Nunez indicated
his understanding. The signed plea agreement specifically provided that the
court was not bound by the stipulation of the parties regarding the guidelines
calculation. With respect to voluntariness, Nunez affirmed under oath that he
was pleading guilty voluntarily and not as the result of promises, threats, or
force. Nunez has not shown any error, and certainly not clear or obvious error,
by the district court in conducting the plea colloquy. See Puckett, 556 U.S. at
135. Moreover, he has not shown a reasonable probability that the alleged error
affected his decision to plead guilty. See United States v. Dominguez Benitez,
542 U.S. 74, 76 (2004). This issue is without merit.
      Nunez also contends that the Government breached the plea agreement
by failing to object to the district court’s determination that Nunez was

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                                 No. 12-51022

responsible for 92.7 kilograms of cocaine and failing to argue that he should be
held responsible for only 16 kilograms of cocaine as provided in the plea
agreement. Nunez may have waived this issue by arguing in his objections to
the Presentence Report (PSR) that he was responsible for 92.7 kilograms of
cocaine rather than the 392.7 kilograms assigned by the PSR. See United States
v. Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). We do not resolve the
issue because, as discussed below, Nunez’s arguments fail under the plain error
standard. See id.; Puckett, 556 U.S. at 135.
      To assess whether a plea agreement has been violated, this court considers
whether “the government’s conduct is consistent with the defendant’s reasonable
understanding of the agreement.” United States v. Valencia, 985 F.2d 758, 761
(5th Cir. 1993). Although the plea agreement provided the stipulation regarding
the amount of cocaine for which Nunez was held responsible, it also stated that
the court was not bound by the stipulation. The plea agreement explained that
the court was authorized to impose any sentence up to the statutory maximum
and that Nunez could not challenge the sentence imposed in the event that the
court imposed a sentence more severe than that predicted by the Government.
There is no language in the agreement requiring the Government to object to a
determination by the probation officer or the court that Nunez was responsible
for an amount of cocaine greater than 16 kilograms. Therefore, Nunez has
shown no clear or obvious error with respect to his contention that the
Government’s silence was a breach of the agreement. See Valencia, 985 F.2d at
761. Further, given the court’s comments at sentencing that Nunez’s own
admissions indicated he was responsible for more than 300 kilograms of cocaine,
Nunez cannot show that there is a reasonable probability he would have received
a lesser sentence but for the alleged breach. See Puckett, 556 U.S. at 142 n.4.
      The judgment of the district court is AFFIRMED.




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