     Case: 18-11252      Document: 00515004828         Page: 1    Date Filed: 06/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                    No. 18-11252                             FILED
                                  Summary Calendar                       June 20, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARCO ANTONIO MURILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:18-CR-34-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Marco Antonio Murillo was convicted of one count of distribution of
methamphetamine and sentenced to serve 188 months in prison and a three-
year term of supervised release.           Now, he argues that the Government
breached the plea agreement when it relied upon certain information gleaned
from him in its arguments in response to his request for a sentencing variance.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11252     Document: 00515004828     Page: 2   Date Filed: 06/20/2019


                                  No. 18-11252

      As Murillo concedes, this claim is reviewed for plain error only due to his
failure to raise it in the district court. United States v. Branam, 231 F.3d 931,
933 (5th Cir. 2000). To show plain error, 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 the defendant makes such a
showing, this court has the discretion to correct the error, but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In determining whether the Government breached a plea agreement,
this court asks if the Government acted in accordance with a “reasonable
understanding of the agreement.” United States v. Purser, 747 F.3d 284, 290
(5th Cir. 2014) (internal quotation marks and citation omitted). Because the
Government drafts the plea agreement, it is construed strictly against that
party, but the defendant still must show a breach by a preponderance of the
evidence. Id.
      The disputed information is not protected by the plea agreement, nor did
the Government use it in a manner forbidden under the agreement.
Accordingly, Murillo has not shown error, plain or otherwise, in connection
with his claim that the Government breached the agreement. See Purser, 747
F.3d at 290.
      AFFIRMED.




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