United States v. Elliot , 183 F. App'x 469 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-40230
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERICK ELLIOT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(4:03-CR-105-ALL)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Roderick Elliot appeals his conviction and sentence for
conspiracy to damage a protected computer. He claims: the
Government breached the plea agreement by recommending a
“particular” term of imprisonment; and he was sentenced in
contravention of United States v. Booker, 543 U.S. 220 (2005).
Whether the Government breached the plea agreement is reviewed
only for plain error because Elliot did not object in district
court. E.g., United States v. Munoz, 408 F.3d 222, 226 (5th Cir.
*
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this opinion should not be published and is not precedent except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.
2005). The Government reserved the right to oppose any sentence
that, in its opinion, was outside the Sentencing Guidelines, and
defense counsel’s request that Elliot receive only six months of
shock incarceration was prohibited both by the Guidelines and the
applicable statute. See U.S.S.G. § 5F1.7, cmt. a; 18 U.S.C. §
4046(a). Elliot has shown no error, plain or otherwise.
Elliot’s plea agreement contained an appeal waiver; however,
the Government’s failure to enforce that provision renders it
nonbinding, permitting our reaching the Booker claim. See United
States v. Story, 439 F.3d 226, 231 (5th Cir. 2006). That claim was
preserved in district court. The district court imposed a
discretionary, alternative sentence identical to the one it had
imposed under the mandatory Guidelines, to become effective should
the Supreme Court declare the Guidelines unconstitutional.
Therefore, the Government has carried its burden of proving the
Booker error harmless. See United States v. Saldana, 427 F.3d 298,
314 (5th Cir.), cert. denied, 126 S. Ct. 810 (2005).
CONVICTION AND SENTENCE AFFIRMED
2