USA v. Artemio Guevara

Filing

UNPUBLISHED OPINION FILED. [11-50977 Affirmed] Judge: EGJ , Judge: FPB , Judge: JLD. Mandate pull date is 10/24/2012 for Appellant Artemio Guevara [11-50977]

Case: 11-50977

Document: 00512007361

Page: 1

Date Filed: 10/03/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-50977
Summary Calendar

October 3, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTEMIO GUEVARA,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:09-CR-654-1

Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Artemio Guevara pleaded guilty to one count of possession with intent to
distribute more than five kilograms of cocaine. Guevara contends that the
Government breached his plea agreement by not moving for a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. Guevara did not object
based on a breach of the plea agreement in the district court and concedes that
review is for plain error only. See Puckett v. United States, 556 U.S. 129, 135-36
(2009).
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Document: 00512007361

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Date Filed: 10/03/2012

No. 11-50977
“Plea bargain agreements are contractual in nature, and are to be
construed accordingly.” United States v. Moulder, 141 F.3d 568, 571 (5th Cir.
1998) (internal quotation marks and citation omitted). “In determining whether
the terms of the plea bargain have been violated, [this] court must determine
whether the government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” United States v. Gonzalez, 309 F.3d 882, 886
(5th Cir. 2002).
In exchange for Guevara’s guilty plea, the Government agreed not to
“contest any recommended findings in the Presentence Report that the
applicable guideline offense level be adjusted to reflect Defendant’s acceptance
of responsibility, as provided by Sentencing Guideline § 3E1.1(a).”

The

agreement further provided that “[i]n the event the Court determines Defendant
is entitled to the adjustment and further finds that the base offense before that
adjustment is at least level 16 the Government agrees to move for the third level
reduction at the time of sentencing based on the defendant’s timely agreement
to plead guilty.”
Because the presentence report (PSR) did not recommend an adjustment
for acceptance of responsibility, there was no fulfillment of the condition that
would have triggered the Government’s obligation not to oppose Guevara’s
request for a downward adjustment and move for an additional acceptance point.
See United States v. Mejia, 24 F.3d 239, 1994 WL 243287, *1 (5th Cir. May 19,
1994).

Further, Guevara’s own objections to the PSR reflect that his

understanding of the plea agreement was that the Government would not
contest the court’s granting of the two initial acceptance points and would only
move “for a third level reduction at the time of sentence if the Court grants
Defendant’s request for a finding of acceptance of responsibility.” Accordingly,
Guevara’s argument on appeal that the Government should have been more
“active” in ensuring that he receive his full downward adjustment for acceptance
of responsibility is not a reasonable understanding of the agreement. See
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Date Filed: 10/03/2012

No. 11-50977
Gonzalez, 309 F.3d at 886. Accordingly, the judgment of the district court is
AFFIRMED.

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