United States v. Alfaro , 248 F. App'x 577 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-51195 F I L E D
Summary Calendar September 25, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAURA PATRICIA LOPEZ ALFARO,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 1:06-CR-102-2
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Laura Patricia Lopez Alfaro appeals her sentence for possession with in-
tent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Lopez Alfaro as-
*
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should not be published and is not precedent except under the limited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.
No. 06-51195
serts that the waiver of appeal in her plea agreement is invalid because the gov-
ernment breached the plea agreement. She contends that the government vio-
lated U.S.S.G. § 1B1.8 and, consequently, the plea agreement when it used state-
ments she made during debriefing to oppose her request for an adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. Lopez Alfaro further con-
tends that the district court erred in failing to grant an acceptance adjustment,
because she pleaded guilty, agreed with the factual resume, and debriefed for the
government. Lopez Alfaro’s arguments are unavailing.
This court considers whether the government breached a plea agreement
even if, as here, the agreement contains an appeal wavier provision. United
States v. Branam, 231 F.3d 931, 931 n.1 (5th Cir. 2000). We ordinarily review
de novo whether the government has breached a plea agreement. See United
States v. Reeves, 255 F.3d 208, 210 (5th Cir. 2001). Because Lopez Alfaro did not
argue breach in the district court, however, review is for plain error. See id.To show plain error, Lopez Alfaro must demonstrate “(1) there was an
error; (2) the error was clear and obvious; and (3) the error affected [her] sub-
stantial rights. When these elements are present, [this Court] may exercise [its]
discretion to correct the error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings.” United States v. Gracia-Cantu, 302
F.3d 308, 310 (5th Cir. 2002) (internal quotation and citation omitted). We apply
the general principles of contract law to interpret the terms of a plea agreement.
Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir. 1996).
Lopez Alfaro contends that the government violated § 1B1.8 and, conse-
quently, the plea agreement when it used statements she made during debrief-
ing to oppose her request for an adjustment for acceptance of responsibility un-
der § 3E1.1. The government informed the district court that Lopez Alfaro had
been uncooperative during debriefing because she refused to identify certain fi-
nancial institutions. Thus, the government did not disclose facially self-incrim-
inating information as prohibited by §1B1.8. There was no error that is plain or
2
No. 06-51195
obvious. Accordingly, because the government did not violate § 1B1.8, it did not
breach the plea agreement.
Lopez Alfaro’s reliance on United States v. Keresztury, 293 F.3d 750,
755-57 (5th Cir. 2002), in support of her argument that the government improp-
erly relied on her debriefing statements is misplaced. The government did not
make any specific promises in the plea agreement regarding an adjustment for
acceptance of responsibility under § 3E1.1. Thus, the government did not breach
an express provision of the agreement when it opposed an adjustment for accep-
tance of responsibility.
Because Lopez Alfaro has failed to establish that the government breached
the plea agreement, the waiver of appeal is enforceable and bars the appeal. Ac-
cordingly, the judgment is AFFIRMED.
3