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1 Local Rule 47.5.1 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes 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should not be published.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. 92-2518
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL PINEDA,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
(CR-H-92-0013-01)
_________________________________________________________________
June 3, 1993
Before JOLLY, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:1
Israel Pineda, convicted after pleading guilty to conspiracy
to possess with the intent to distribute over five kilograms of
cocaine, contends that his plea was involuntary, because the
government breached the plea agreement, and because the district
court failed to comply with the requirements of Fed. R. Crim. P.
11. We AFFIRM.
I.

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2 Pineda is represented by different counsel on appeal.
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In a two-count indictment, Pineda was charged with conspiracy
to possess with the intent to distribute in excess of five
kilograms of cocaine (count one), and aiding and abetting the
felony possession of more than five kilograms of cocaine (count
two). He agreed to plead guilty to count one in exchange for the
government's promises to (1) dismiss count two; (2) recommend that
he be granted a reduction in his Sentencing Guidelines offense
level for acceptance of responsibility; and (3) recommend that his
sentence not exceed 151 months imprisonment. Those terms are
reflected in a written plea agreement, signed by Pineda and his
attorney.2
At the rearraignment hearing, conducted on the day Pineda
signed the plea agreement, the district court recited the terms as
stated in the written agreement regarding what the Government
promised Pineda in exchange for his guilty plea. Pineda
acknowledged that he understood the terms of the agreement. At the
conclusion of the hearing, the district court accepted the plea,
finding that it was knowing and voluntary.
The presentence report also recited the terms of the
agreement, and Pineda did not object to this portion of the PSR.
At his sentencing hearing, however, Pineda asked to address the
court; and the following exchange took place:
[Pineda]: .... Your Honor, please note that I
did cooperate with the DEA, and they promised me
that if I would cooperate with them, that they
would recommend to you that a -- a decrease in my
sentence.

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They told me if I were to lie, that they would
not help me. The prosecutor, the assistant U.S.
attorney said if I were to lie, they would not help
me. Those are the words of the assistant U.S.
attorney....
THE COURT: Well, wait a minute. There is
nothing in the plea agreement involving [the]
government's agreement to move for a departure
under 5K1.1, is there?
[Prosecutor]: No, Your Honor. As far as I
know, the only ... conversations that were had
along that line were if in fact he did debrief and
cooperate with the government, the Government would
consider that, but that was done--that was
mentioned to the Government like the day of the
plea.
I have not received any information from any
agents that he has--in fact I believe it was after
the plea, and I have not received any information
from any agents or defendant's counsel that he in
fact has debriefed or had any contact with any
agents from the Government since the day of the
plea, Judge. So I'm a little bit at a loss.
THE COURT: Mr. DeVictoria [defense counsel],
can you shed any light on this?
MR. LOPEZ DEVICTORIA: Yes, Your Honor. I was
told by my client today that he did met [sic] with
[DEA] Agent Phoenice. But I don't know what was
the extension [sic] of the conversation because I
was not participating in that.
THE COURT: Well, it's not a part of the plea
agreement. The Government hasn't filed a motion.
If in fact he has cooperated and the government
moves for downward departure, I can consider it
under Federal Rule of Criminal Procedure 35 even
after judgment.
[Prosecutor]: For the Court's information, I
certainly will go forward and contact the agent and
see, and if appropriate, I would make such a
motion, as I would for any defendant.
The alleged promise was not mentioned again, and Pineda
neither objected to the imposition of sentence, nor sought to

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withdraw his plea. The district court sentenced him to 136 months
imprisonment, five years of supervised release, and a $50 special
assessment.
II.
A.
We first consider, sua sponte, whether Pineda's notice of
appeal is sufficient to properly raise the issues he asserts. See,
e.g., United States v. Winn, 948 F.2d 145, 153 (5th Cir. 1991)
("when necessary, as here, we must examine the basis of our own
jurisdiction sua sponte"), cert. denied, ___ U.S. ___, 112 S. Ct.
1599 (1992). A defendant who alleges that a plea agreement has
been breached has the option of seeking one of two remedies on
appeal: (1) specific performance, which requires that the sentence
be vacated and the defendant resentenced by a different judge; or
(2) withdrawal of the guilty plea, and the opportunity to plead
anew, which requires vacation of both the conviction and the
sentence. E.g., Santobello v. New York, 404 U.S. 257, 263 (1971);
United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993);
United States v. Goldfaden, 959 F.2d 1324, 1329 (5th Cir. 1992).
Rule 3(c) of the Federal Rules of Appellate Procedures provides
that a notice of appeal "shall designate the judgment, order or
part thereof appealed from".
Pineda's notice of appeal was prepared on a form containing
blanks for "Conviction only", "Conviction and sentence", "Sentence
only" and "Order". A check appears only in the blank next to
"Sentence only". However, he does not request specific performance

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of the plea agreement; instead, the relief he seeks -- vacation of
his guilty plea -- if granted, would require vacation of both his
conviction and sentence.
In United States v. Ramirez, 932 F.2d 374 (5th Cir. 1991), our
court noted that, although the first clause of Rule 3(c), which
requires that the notice of appeal specify the parties taking the
appeal, is jurisdictional, "we broadly construe the second clause
..., which requires that [it] designate the judgment or order from
which an appeal is taken." Id. at 375. In that case, the
defendant had drawn a line through, and initialed, the portion of
the typewritten notice of appeal which stated that he was appealing
his sentence, but left intact the portion which stated that he was
appealing the judgment. Id. at 375. Concluding that the
defendant's intent to appeal his sentence was readily apparent, and
that the government had not demonstrated any prejudice, our court
granted the defendant's motion to amend his notice of appeal.
The situation we face is the opposite of that addressed in
Ramirez: Pineda's notice of appeal designates his sentence, but
not his conviction. The Ramirez court reasoned that "[a] criminal
defendant who appeals his sentence but not his conviction is likely
acknowledging his guilt and merely contesting his punishment," but
the converse was not necessarily true. Id. at 376. Here, that is
not the case; Pineda's intent to appeal his conviction is readily
apparent in his brief, in which he seeks only vacation of the plea,
and not specific performance. The Government has fully responded
to Pineda's arguments, and will not be prejudiced by our

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3 In fact, the Government states in its brief that "Pineda
timely appealed his conviction". (Emphasis added.)
4 Pineda's argument is rather confusing: although his
contention that the plea agreement was breached is premised on an
assertion that the alleged promise was part of the plea agreement,
he also contends that his plea was involuntary because it "was
based on a promise not a part of the agreement". Needless to say,
there could be no breach unless the alleged promise was part of the
agreement.
5 The Government urges us to review Pineda's claim only for
plain error. Because "[t]he failure of the Government to fulfill
its promise ... affects the fairness, integrity, and public
reputation of judicial proceedings[,] ... a prosecutor's breach of
a plea agreement can amount to plain error." Goldfaden, 959 F.2d
at 1328. Although the Government correctly asserts that Pineda is
contending for the first time on appeal that his plea was
involuntary, and did not move to withdraw his plea in the district
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consideration of them.3 Accordingly, we will liberally construe
Pineda's notice of appeal to include a challenge to his conviction
as well as his sentence.
B.
Pineda contends that the Government promised to recommend a
decrease in his sentence if he cooperated, and that the
Government's failure to keep this promise rendered his guilty plea
involuntary.4
"[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled."
Santobello v. New York, 404 U.S. at 262. In determining whether
there has been a breach of the plea agreement, we must determine
"whether the government's conduct is consistent with the
defendant's reasonable understanding of the agreement." Valencia,
985 F.2d at 761.5

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court, he did raise the issue of the alleged promise at his
sentencing hearing, and the district court found that the alleged
promise was not part of the plea agreement.
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The first step in our analysis is to determine whether the
alleged promise was part of the plea agreement, "a factual issue to
which the clearly erroneous standard of review is applied." United
States v. Chagra, 957 F.2d 192, 194 (5th Cir. 1992). The written
plea agreement does not contain the alleged promise. Instead, it
states:
I have received no promises of leniency, or of any
other nature, other than those made a part of this
pleading, from my own attorney, the attorneys for
the United States or from any other person, to
induce me to plead guilty.
In appropriate circumstances, of course, we will look beyond
the four corners of a written plea agreement in determining what
promises induced the plea. For example, although the plea
agreements in United States v. Fields, 906 F.2d 139 (5th Cir.),
cert. denied, 498 U.S. 874 (1990), and United States v. Melton, 930
F.2d 1096 (5th Cir. 1991), contained language similar to that
quoted above, both agreements were transmitted with cover letters
from the prosecutor stating that the government would recommend
departure based upon the defendant's complete debriefing and
substantial assistance to the government. Melton, 930 F.2d at
1098; Fields, 906 F.2d at 141-42 & nn. 1 & 2. Here, however, there
is no written evidence, such as the cover letters in Fields and
Melton. In the absence of such evidence, we appropriately accord
greater weight to the language of the written agreement.

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In any event, our review of the record has uncovered no
evidence that the alleged discussion of a downward departure took
place before Pineda entered his guilty plea, and Pineda points to
none. Therefore, the alleged promise could not have induced the
plea. Despite being given an opportunity to do so at the
rearraignment hearing, neither Pineda nor his counsel mentioned the
alleged promise. Pineda specifically acknowledged that he
understood the terms of the agreement after the district court
recited them to him during that hearing. Moreover, Pineda did not
object to the portion of the PSR outlining the terms of the plea
agreement. Pineda first referred to the alleged promise at the
sentencing hearing, but did not seek to withdraw his plea or object
to the imposition of sentence at that time. We conclude that the
district court did not clearly err in finding that the alleged
promise was not part of the plea agreement.
Furthermore, Pineda's attorney implicitly agreed that it would
be appropriate for the prosecutor to look into the matter and file
a Rule 35 motion if Pineda had in fact provided substantial
assistance to the DEA. Having previously acquiesced in the
propriety of that procedure, Pineda cannot now contend, through new
counsel on appeal, that the Government violated the plea agreement.
See United States v. Gongora, No. 92-2265 (5th Cir. Feb. 17, 1993)
(unpublished).

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6 Rule 11(d) provides:
The court shall not accept a plea of guilty ...
without first, by addressing the defendant
personally in open court, determining that the plea
is voluntary and not the result of force or threats
or of promises apart from a plea agreement. The
court shall also inquire as to whether the
defendant's willingness to plead guilty ... results
from prior discussions between the attorney for the
government and the defendant or the defendant's
attorney.
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C.
Pineda contends that the district court violated Fed. R. Crim.
P. 11(d),6 because it failed to fully address whether his plea was
voluntary, and failed to either specifically or indirectly inquire
about duress, threats, or outside promises.
We review a district court's failure to comply with Rule 11
for harmless error, unless the court completely fails to address
one of the core concerns, in which case automatic reversal is
required. United States v. Adams, 961 F.2d 505, 510 (5th Cir.
1992). One of the core concerns of Rule 11 is whether the guilty
plea was coerced. Id. Rule 11(d) requires the court to determine
whether the guilty plea is voluntary by addressing the defendant
personally in open court, and determining that the plea is "not the
result of force or threats or of promises apart from a plea
agreement". Fed. R. Crim. P. 11(d).
Rule 11(d) does not require the district court to invoke
talismanic phrases or to use the exact language of the rule when
inquiring into voluntariness. "Even though a district court does
not use the exact language of Rule 11(d), it satisfies the specific

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requirement of Rule 11(d) when it exposes to public view the terms
of any plea agreement and ensures that the plea is voluntary."
United States v. Andrews, 918 F.2d 1156, 1162-63 (5th Cir. 1990),
overruled on other grounds, United States v. Bachynsky, 934 F.2d
1349 (5th Cir.) (en banc), cert. denied, ___ U.S. ___, 112 S. Ct.
402 (1991).
In open court, the district court went over the plea agreement
in detail, stated what the Government had promised, thoroughly
explained that the Government's recommendations were not binding on
the court, and asked Pineda if he understood the terms of the plea
agreement. We conclude that it conducted an adequate inquiry into
the voluntariness of the plea.
III.
For the foregoing reasons, the conviction and sentence are
AFFIRMED.

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