(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law impose needless expense
on the public and burdens on the legal profession." Pursuant to
that Rule, the court has determined that this opinion should not be
published.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________________
No. 94-40137
Summary Calendar
_______________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN H. POWELL,
Defendant-Appellant.
__________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(93-CR-30016(1))
__________________________________________________________
(July 15, 1994)
Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
PER CURIAM:*
This is John Powell's second appeal of sentences imposed under
a plea agreement. We AFFIRM.
I.
In 1993, Powell was charged with perjury and entered into a
plea agreement under which the Government, inter alia, agreed to
recommend a particular sentence. It did so when Powell entered his
plea of guilty, at which time the plea agreement was made a part of
the record. The agreement was also referenced in the presentence

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report. When Powell was sentenced, however, the Government did not
make a verbal recommendation of any sentence; but Powell did not
make any objection to its silence. Powell did, however,
immediately appeal his sentence, which included imprisonment for 12
months and a fine of $5,000.
On appeal, Powell contended that, by failing to make a verbal
recommendation at sentencing, the Government had failed to comply
with its obligations under the plea agreement. At the request of
the district court, the case was remanded for resentencing.
On remand, the district court denied Powell's motion to
withdraw his guilty plea and vacated the original sentence. At the
second sentencing, the Government verbally recommended the sentence
set out in the plea agreement, and the court imposed a sentence of,
inter alia, six months imprisonment and a fine of $10,000. Powell
appealed again, asserting that the district court erred in denying
his motion to withdraw his plea.
II.
This case turns on whether the Government breached the plea
agreement by failing to make a verbal sentence recommendation at
the first sentencing. If it did, Powell was entitled to either
specific performance of the agreement or withdrawal of his guilty
plea. United States v. Palomo, 998 F.2d 253 (5th Cir. 1993). The
defendant bears the burden of establishing a breach of the
agreement. United States v. Hernandez, 17 F.3d 78, 81 (5th Cir.
1994).

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The district court had the case remanded to address the error
claimed from the first sentencing. In short, it is arguable that
the claimed error was cured on remand, at the second sentencing.
But, in any event, and as Powell concedes, even if there was
error, we review only for plain error, inasmuch as Powell did not
object to the Government's silence at the first sentencing hearing.
In order to prevail under plain error review there must be an
"error" that is both "plain" and affects substantial rights.
United States v. Rodriguez, 15 F.3d 408, 415-16 (5th Cir. 1994).
And, even when those factors are present, whether to take notice of
an error not raised below rests within the discretion of the
district court. Id. Needless to say, under the circumstances of
this case, we find no plain error.
III.
For the foregoing reasons, the sentence is
AFFIRMED.

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