United States v. Aguayo-Paramo

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40932
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AGUAYO-PARAMO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-00-CR-499-5
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August 21, 2002
Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Aguayo-Paramo (Aguayo) appeals his guilty-plea
conviction for conspiracy to possess with intent to distribute
112 kilograms of marihuana in violation of 21 U.S.C. §§ 841
& 846. As part of the plea agreement, the Government agreed to
recommend that Aguayo be sentenced at the lowest end of the
applicable sentencing guidelines range. Aguayo contends that the
Government breached the plea agreement by remaining silent at

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sentencing regarding the appropriate sentence and by opposing the
application of the safety valve adjustment in U.S.S.G. § 5C1.2.
Aguayo also asserts that the district court clearly erred by
failing to apply the safety valve adjustment to reduce his
sentence.
Because Aguayo did not object to the alleged breach of the
plea agreement before the district court, we review this issue
for plain error. See United States v. Reeves, 255 F.3d 208, 210
(5th Cir. 2001). The 60-month sentence imposed by the district
court was the mandatory minimum sentence, as well as the
guideline sentence. 21 U.S.C. § 841(b)(1)(B); U.S.S.G.
§ 5G1.1(b). Therefore, any failure by the Government to
recommend at sentencing that Aguayo be sentenced at the low end
of the applicable guideline range was not plain error because it
could not have affected his sentence since there was no range
under the sentencing guidelines. To the extent that the
Government opposed the safety valve adjustment, it did not breach
the plea agreement because the Government’s arguments addressed
the applicable guideline range, not Aguayo’s sentence within it.
Given the inconsistencies between Aguayo’s written statement
regarding the facts of his offense, his statements at sentencing,
and the information provided by the Government and in the PSR,
the district court did not clearly err in denying the safety
valve adjustment based on Aguayo’s failure to provide truthful

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information. See U.S.S.G. § 5C1.2(5); United States v. Miller,
179 F.3d 961, 968-69 (5th Cir. 1999).
AFFIRMED.

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