                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-11063         ELEVENTH CIRCUIT
                         Non-Argument Calendar        JUNE 15, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                D.C. Docket No. 3:09-cr-00169-MMH-JRK-3

UNITED STATES OF AMERICA,

                                              lllllllllllllllllllllPlaintiff-Appellee,

                                  versus

FELIPE LOPEZ-ATANACIO,
a.k.a. Silvano Lopez,
a.k.a. Felipe Lopez,

                                           lllllllllllllllllllllDefendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 15, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
       Felipe Lopez-Atanacio appeals from his conviction pursuant to a plea

agreement and his 60-month statutory mandatory minimum sentence imposed for

conspiracy to distribute cocaine in the amount of 500 grams or more in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Lopez-Atanacio argues that: (1) the

government materially breached the clause of the plea agreement that permitted him

to request safety valve relief pursuant to 18 U.S.C. § 3553(f) without government

opposition; and (2) he received ineffective assistance of counsel in negotiating his

plea agreement, and this issue falls outside the scope of his appeal waiver because it

challenges the validity of the guilty plea as a whole. After careful review, we affirm.

       Whether the government breached a plea agreement is a question of law, to be

reviewed de novo. United States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir.

2008). However, when a defendant fails to raise an issue before the district court, we

review for plain error. Id. Under plain error review, the defendant must show (1) an

error, (2) that is plain, (3) that affects the defendant’s substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Id. Claims of ineffective assistance of counsel generally are not considered for the

first time on direct appeal. Massaro v. United States, 538 U.S. 500, 505-06 (2003).

       The government is bound by any material promises it makes to a defendant as

part of a plea agreement that induces the defendant to plead guilty. United States v.

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Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008). Whether the government violated the

agreement is judged according to the defendant’s reasonable understanding at the

time he entered his plea. Id. Specifically, with respect to an agreement not to oppose

safety valve relief, we have held that the government did not breach a plea agreement

by requesting a sentence at the high-end of the guideline range, when its obligation

was contingent on the defendant’s safety valve eligibility and a district court finding

that the defendant satisfied the criteria of § 3553(f). United States v. Mahique, 150

F.3d 1330, 1332 (11th Cir. 1998).

       Here, the safety valve provision in Lopez-Atanacio’s plea agreement includes

two unambiguous conditions on the government’s obligations: (1) Lopez-Atanacio

must request safety valve relief and (2) the district court must find that he satisfies the

criteria for relief. On this record, the government did not breach the safety valve

provision of the plea agreement, because Lopez-Atanacio never invoked the provision

by requesting safety valve relief. Additionally, Lopez-Atanacio conceded he was not

eligible for safety valve relief, so the district court could not have found that he

satisfied the criteria of § 3553(f) as required to trigger the government’s obligations

under the provision. Mahique, 150 F.3d at 1332.

       Furthermore, Lopez-Atanacio’s argument that the plea agreement is void and,

therefore, warrants withdrawal of his plea, fails because the government did not make

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an affirmative promise that he would be eligible for safety valve relief. Instead, the

parties anticipated that the district court may find that Lopez-Atanacio was not

eligible for safety valve relief by conditioning the government’s obligations on a

favorable finding. Thus, Lopez-Atanacio could not have reasonably understood the

provision to be a binding promise that he would receive the benefit of safety valve

relief. Therefore, he fails to demonstrate that the district court erred, plainly or

otherwise, by accepting his guilty plea and sentencing him to the mandatory minimum

despite the safety valve provision in his plea agreement.

      As for Lopez-Atanacio’s ineffective assistance of counsel claims, the record

is almost entirely devoid of details regarding the negotiation of the plea agreement.

Thus, Lopez-Atanacio’s ineffective assistance of counsel claims are best suited to a

motion to vacate pursuant to 28 U.S.C. § 2255, where a district court may develop the

necessary facts to determine the adequacy of the representation. See Massaro, 538

U.S. at 505-06. Accordingly, we affirm Lopez-Atanacio’s conviction and sentence,

without ruling on his ineffective assistance of counsel claim.

      AFFIRMED.




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