1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-40058

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES DAVID BRANAM, also known as Jimmy Branam,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

October 26, 2000

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:

James David Branam appeals a fine, imposed as part of his

sentence after a guilty plea. We affirm.

Pursuant to a written plea agreement, Branam pleaded guilty to

a single count of transportation of a stolen vehicle in violation

o f 18 U.S.C. § 2312. Four additional counts of sale of a stolen

vehicle were dismissed. Branam was sentenced to 35 months’1 We consider whether the Government breached the plea agreement

despite an appeal-waiver provision in the plea agreement. United

States v. Price , 95 F.3d 364, 366-68 (5th Cir. 1996).

2 imprisonment, three years’ supervised release, and a $3000 fine.

On appeal, Branam contends that the G overnment violated the

plea agreement. 1 The plea agreement states that:

12. Allocution at Sentencing: The Defendant understands

and agrees that:

(b) the Government shall refrain from recommending

that the sentencing judge sentence the Defendan t to a

particular term of imprisonment or fine, but reserves the

right to recommend that the sentence include restitution

and some form of imprisonment. Nothing herein shall be

construed to limit the information which the Government

provides to the probation offic er and Court, legal

arguments on the applicability of certain Guideline

provi s ions, or allocution on the sentence the Court

should impose within the applicable Guidelines.

The Presentence Investigation Report (“PSR”), to which neither

party objected, calculated the Guidelines fine range for Branam’s

conviction from $3000 to $30,000 and recommended the imposition of

a $3000 fine. The PSR noted that Branam signed a personal

financial statement indicating he had no assets or income with

which to pay a fine, but that he was trained in air conditioning

repair and had worked in the heating and air conditioning business

for many years, including owning his own business for about nine

years, indicating some ability to pay. On the other hand, Branam

was incarcerated for an unrelated assault conviction at the time of

sentencing. Branam’s sentence in this case is to be served

consecutively to his state sentence, thus delaying gainful

employment for some time. The Government did not raise the issue3

of restitution as the equipment had been returned to the proper

owners.

At sentencing, the district court adopte d the factual

findings and the Guideline calculations set out in the PSR.

Branam’s counsel stated that he had no objection to the recommended

prison term of 35 months but, on the basis of Branam’s financial

circumstances, urged the district court not to impose a fine.

Branam’s allocution followed, which consisted of a brief statement

that he was trying to change his ways, but included no mention of

the fine.

The district cou rt then afforded the Government the

opportunity to address the court. The Government stated:

I would like to address Mr. Monsivais’ request that the

Defendant not be fined in this case. Your Honor, this

case involved the sale of stolen property, stolen heavy

tracto r equipment. And the Government would point out

that the property which Mr. Branam stole, according to

the plea agreement, which he admits stealing, is valued

at over $130,000.

The Government was paying Mr. Branam through its

undercover operation for that money. Of course, that’s

buy money and we’re not allowed to get that back as

restitution, but we paid over $20,000 for that property

and we think that it is fair that Mr. Branam be sentenced

to pay a fine as recommended by the probation office of

$3000 in this case. We think that fine is wholly

appropriate, as we do the sentence recommended by the

probation office. And we would simply encourage the

Judge to order Mr. Branam to pay the fine.

Branam argues o n appeal that the Government’s comments at

sentencing went beyond an exercise of the right of allocution and

constituted an improper recommendation as to the fine he should

receive. He contends that the Government breached the plea4

agreement by arguing for a specific fine of $3000. Branam seeks

s pecific performance of the plea agreement, including an order

vacating his sentence and remanding this case for resentencing

before a different judge. S ee United States v. Palomo

, 998 F.2d

253, 256 (5th Cir. 1993).

The plea agreem ent included a section setting out specific

procedures for determining whether the pl ea agreement had been

breached:

13. Procedures for Determining a Breach of the Agreement:

In the event a breach is alleged by either party, the

party claiming the breach shall provide notice to the

other party in writing and afford that party a reasonable

opportunity to explain or cure the breach.

Branam did not object to the prosecutor’s comment, nor did he

comply with that portion of the plea bargain mandating written

notice of an alleged breach and an opportunity to cure the breach.

Because Branam did not object to the prosecutor’s comments, review

is for plain error. U nited States v. Calverley

, 37 F.3d 160, 162-

64 (5th Cir. 1994). Even if we find plain error, we will not

exercise our discretion to correct a forfeited error unless it

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. U nited States v. Olano

, 507 U.S. 725, 735-36

(1993). “The Government’s breach of a plea agreement can

constitute plain error.” U nited States v. Wilder

, 15 F.3d 1292,

1301 (5th Cir. 1994).

The Government argues t hat the statement Branam complains5

about was allocution on the sentence the district court should

impose within the applicable Guidelines. The Government

specifically reserved its right to allocution in the plea agreement

and contends that Branam’s argument that he did not have the

ability to pay a fine called for a resp onse from the Government.

Further, the $3000 figure was the bottom of the Guideline range of

$3000 to $30,000 and the same figure recommended by the probation

office. The argument might therefore be characterized as urging

the district court to fine Branam within the Guideline range or in

compliance with th e probation office’s recommendation, to which

Branam had not objected.

Assuming, without deciding, that the Government’s statement

“encouraging” the district court to impose the fine bre ached the

plea agreement and amounted to plain error, we conclude that it did

not seriously affect the fairness, integrity, or public reputation

of the judicial system. Branam’s failure to comply with the plea

agreement’s wholly reasonable and specific procedures for

determini ng whether the agreement had been breached convinces us

that Branam is not entitled to an order for specific performance of

the agreement. We therefore decline to correct any plain error

that may exist.

Branam next claims that the district court erred in assessing

a fine because he had demonstrated that he did not have the

financial ability to pay a fine. The Government notes that Branam

failed to object to the fine and argues that it was appropriate.6

As part of the plea agreement, Branam waived “any appeal, including

collateral appeal under 28 U.S.C. § 2255, of any error which may

occur surrounding the substance, procedure or form of the

conviction and sentence in this case” with the exception of

Sentencing Guidelines determinations. A defendant may waive his

statutory right to appeal as part of a valid plea agreement if the

waiver is knowing and voluntary. U nited States v. Melancon

, 972

F.2d 566, 567 (5th Cir. 1992). The record in this case dictates

the conclusion that Branam validly waived his right to appeal.

Therefore, he may not challenge the propriety of the district

court’s decision to impose a $3000 fine as part of his sentence.

Based on the foregoing we affirm Branam’s sentence.

AFFIRMED.