United States v. Perez , 179 F. App'x 234 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-10540
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO OLISCES PEREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-250-2
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Francisco Olisces Perez pleaded guilty to count 2 of an
indictment charging him with receipt and possession of an
unregistered firearm and aiding and abetting. Perez was
sentenced to an 80-month term of imprisonment and to a three-year
period of supervised release. Perez was also fined $2,000.
Perez contends that the district court’s classification of
him as a “prohibited person,” in determining his offense level
under U.S.S.G. § 2K2.1(a)(4)(B), was based improperly on
*
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this opinion should not be published and is not precedent except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. 05-10540
-2-
admissions made to the probation officer during a presentence
interview in violation of Perez’s plea agreement with the
Government. Our review is for plain error. See United States v.
Munoz, 408 F.3d 222, 226 (5th Cir. 2005).
The Government did not agree expressly that the guidelines
sentence should be calculated in a particular manner; nor did it
agree expressly that admissions made pursuant to the cooperation
agreement could not be used against him. Perez’s contention that
there was an implicit understanding is without merit. Perez
acknowledged that he would be sentenced pursuant to the
Sentencing Guidelines and that his guideline range could not be
predicted until after the pre-sentence investigation was
completed. Unlike United States v. Marsh, 963 F.2d 72, 74 (5th
Cir. 1992), and United States v. Kinsey, 917 F.2d 181, 184 (5th
Cir. 1990), cited by Perez, the Government does not concede in
this case that it had agreed that Perez’s cooperation agreement
would be governed by U.S.S.G. § 1B1.8(a). Perez could not
reasonably have believed that the Government’s promise not to
bring additional charges implicitly barred the use, in
determining his sentence, of inculpatory admissions during his
interview with the probation officer. Therefore, Perez cannot
show that the plea agreement rested in any significant degree on
a promise or agreement of the prosecutor or that the Government’s
conduct was inconsistent with Perez’s reasonable understanding of
the agreement. See Munoz, 408 F.3d at 226.
No. 05-10540
-3-
Even assuming clear and obvious error, Perez cannot show
that the error seriously affected the fairness, integrity, or
public reputation of the judicial proceedings. Under § 2K2.1,
comment. (n.3), the term “‘prohibited person’ means any person
described in 18 U.S.C. § 922(g) . . . .” Under § 922(g)(3), it
is unlawful for a person “who is an unlawful user of or addicted
to any controlled substance” to ship or transport, possess, or
receive a firearm or ammunition that has been shipped or
transported in interstate or foreign commerce. See United States
v. Bennett, 329 F.3d 769, 776–77 & n.4 (10th Cir. 2003) (drug use
must be contemporaneous but need not be simultaneous with
offense); United States v. Nevarez, 251 F.3d 28, 30 (2d Cir.
2001) (evidence of persistent drug problem sufficient). Evidence
in the record of Perez’s long-term marijuana use provides an
ample basis for the court to determine that Perez’s marijuana use
was contemporaneous with the offense, regardless of the disputed
admissions evidence. See Miller, 406 F.3d at 335. Accordingly,
Perez cannot show that the district court committed reversible
plain error. See id.
AFFIRMED.