### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 20572 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. HUGO ALEXANDER MELENDEZ

- GONZALEZ, also known as El Gordo, also known as Mario Antonio Chavez

- Melendez, also known as Jose Antonio Melendez , Defendant

- Appellant

Appeal s from the United States District Court for the Southern District of Texas USDC No. 4:14

- CR

- 497

- 1

Before JONES, WIENER, and CLEMENT, Circuit Judges. PER CURIAM: * Defendant

- Appellant Hugo Alexander Melendez

- Gonzalez pleaded guilty, pursuant to a plea agreement containing an appellate waiver, to trafficking a minor female referred to as M.G.C. in or about March 2013 , in violation of 18 U.S.C. § 1591. In r eturn for the guilty plea, the g overnment agreed to move to dismiss the remaining three counts of the indictment and

* Pursuant to 5 TH C IR

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 31, 2017 Lyle W. Cayce Clerk Case: 16-20572 Document: 00514014079 Page: 1 Date Filed: 05/31/2017No. 16

- 20572

2 not to oppose a request for a two

- level downward adjustment for ac ceptance of responsibility. In the presentence report (PSR), the probation officer relied on U.S.S.G. § 2G1.3(d)(1) and U.S.S.G. § 1B1.3(a)(1) to treat the crimes against other victims who wer e trafficked at the same time as M.G.C. as relevant conduct in “pseudocounts

. ” Melend ez - Gonzalez objected to the PSR because t he probation officer did not show that the other victims were trafficked at the same time as M.G.C. The distric t court overruled his objection and sentenced him to 327 months of imprisonment and 10 years of supervised release. On appeal, Melendez

- Gon zalez argues that the g overnment breached the plea agreement by endorsing the use of pseudocounts and uncharged conduct to enhance his sentence. Typically, whether the g overnment has breached a pl ea agreement is a question of law that we review de novo. United States v. Chavful , 781 F.3d 758, 761 (5th Cir. 2015). H ere, h owever, plain error review applies because Melendez

- Gonzalez did not object to any breach in the district court. See United States v. Hebron , 684 F.3d 554, 557

- 58 (5th Cir. 2012). Therefore, Melendez

- Gonzalez must show a forfeited error that is clear or obvious and that affected his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). And, even i f he m akes such a showing, we ha ve the discretion to correct the error but only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citations omitted). A defendant may claim that th e g overnment breached the plea agreement despite the appeal waiver contained in his plea agreement. See United States v. Keresztury , 293 F.3d 750, 756

- 57 (5th Cir. 2002). The defendant “has the burden of demonstrating the underlying facts that establish breach by a preponderance of the evidence.” United States v. Long , 722 F.3d 257, 262 (5th Cir. 2013) (internal quotation marks and citation Case: 16-20572 Document: 00514014079 Page: 2 Date Filed: 05/31/2017No. 16

- 20572

3 omitted) . “In determining whether the g overnment violated a plea agreement, th is court considers whether the g over nment’s conduct was consistent with the defendant’s reasonable understanding of the agreement.” United States v. Munoz , 408 F.3d 222, 226 (5th Cir. 2005) (internal quotation marks and citation omitted). Melendez

- Gonzalez has failed to show an error, plain or otherwise , bec ause he has not shown that the g overnment breached the plea agreement

. See Puckett , 556 U.S. at 135

. The g overnment does not breach a plea agreement by supporting enhanceme nts based on relevant conduct when the plea agreement does not include a promise to disregard relevant conduct. See United States v. Hinojosa , 749 F.3d 407, 413

- 14 (5th Cir. 2014) ; United States v. Hoster , 988 F.2d 1374, 1378 (5th Cir. 1993)

. In this case, the g overnment did not promise to disregard relevant conduct . It only agreed to dismiss the remaining counts of the indictment , which it did

. T he judgment of the district court is AFFIRMED

. Case: 16-20572 Document: 00514014079 Page: 3 Date Filed: 05/31/2017