United States v. Cantu , 225 F. App'x 301 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-40123
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONRADO CANTU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:05-CR-458-1
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Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Conrado Cantu appeals his guilty-plea conviction and
sentence for racketeering, in violation of 18 U.S.C. § 1962(c).
Cantu argues that the district court erred in enhancing his
offense level pursuant to U.S.S.G. § 3C1.1 for his obstructive
behavior. He contends further that his waiver of his right to
appeal his sentence is not enforceable in light of the
Government’s breach of an oral plea agreement.
We first address Cantu’s breach argument, which we review de
novo. See United States v. Price, 95 F.3d 364, 367 (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this opinion should not be published and is not precedent except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.
No. 06-40123
-2-
1996). Cantu has not carried his burden of establishing by a
preponderance of the evidence that the Government breached the
plea agreement. United States v. Laday, 56 F.3d 24, 26 (5th Cir.
1995). The terms of Cantu’s plea agreement were explicit and
clear. The plea agreement did not obligate the Government to
file a § 5K1.1 motion or to recommend any particular sentence.
Despite Cantu’s self-serving allegations, there is nothing in the
record to support his assertion that the Government made oral
promises outside of the plea agreement and later breached those
promises. See United States v. Ballis, 28 F.3d 1399, 1410 (5th
Cir. 1994) (although circumstances surrounding the agreement’s
negotiations might indicate the parties’ intent, “parol evidence
is inadmissible to prove the meaning of an unambiguous plea
agreement.”)
Cantu’s plea agreement contained an appeal waiver, which the
Government seeks to enforce and which the record establishes was
entered into knowingly and voluntarily. See United States v.
Robinson, 187 F.3d 516, 517 (5th Cir. 1999). Therefore, Cantu’s
appeal of the § 3C1.1 enhancement is barred by his waiver and is
dismissed. See United States v. Melancon, 972 F.2d 566, 568 (5th
Cir. 1992).
APPEAL DISMISSED.