* Pursuant to Local Rule 47.5, the court has det ermined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-21037

(Summary Calendar)

_________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE CORDERO,

Defendant-Appellant.

____________________________________________________

Appeal from United States District Court

for the Southern District of Texas

(CCR H 94-242-3)

__________________________________________________

August 19, 1996

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

PER CURIAM: *

Cordero appeals his sentence from his conviction for conspiracy to posse ss with intent to

distribute in excess of five kilograms of cocaine, contending that the Government breached the plea

agreement by failing to recommend a 1 3-year cap on imprisonment. Finding no clear error, we

AFFIRM.2 FACTS

Pursuant to a plea agreement, Cordero pled guilty to a conspiracy to possess with intent to

distribute more than five kilograms of cocaine. The agreement states that:

2. In exchange for the defendant’s plea of guilty to Count One of the

indictment and his pe r sisting with that plea through sentencing and

the defendant’s substantial assistance t he United States will dismiss

the rem a ining counts without prejudice after sentencing and will

recommend a 5K1.1 departure and no more than 13 years. This plea

agreement is being entered into b y t he United States on the basis of

the defendant’s express representation that the defendant will make a

full, complete, and truthful disclosure of all criminal activity known to

him and will testify truthfully when and where he may be requested to.

The United States reserves its option to seek any departure from the

applicable sentencing guidelines, pursuant to Section 5K of the

S ent encing Guidelines and Policy Statements, or Rule 35(b) of the

Federal Rules of Criminal Procedure, if in its discretion, it is

determined that such departure is appropriate. (Emphasis added).

The plea agreement makes it clear that the sentence to be imposed is within the discretion of

the sentencing judge, and that the Court has jurisdiction and authority to impose any sentence up to

the statutory maximum. The defendant “is also aware that any estimate of the probable sentencing

range under the sent encing guidelines that the defendant may have received from the defendant’s

counsel, the United States or the Probation Office, is a prediction, not a promise, and is not binding

on the United St at es, the Probation Office or the Court.” The agreement further provides that if

Cordero fails to fill all of

his obligations under the plea agreement, then the United States will be

released from its obligations, and it mentions that if Cordero either knowingly withholds evidence,

or is otherwise not completely truthful with the United States, then the Government can prosecute

him for perjury, use any information that it has obtained against him, or recommend any sentence it3

considers appropriate. Finally, the defendant “waives the right to appeal the sentence or the manner

in which it was determined on the grounds set forth in 18 U.S.C. §3742.”

The probation officer preparing the PSR discovered that Cordero held a criminal record in

California under an alias, and Cordero had failed to disclose this fact. Moreover, the Government

did not find that Cordero provided substantial assistance though he was given a conti nuance of

sentencing specifically to allow him addi t io nal opportunity to provide such assistance. The

Government indicated that it did not intend to enter the §5K1.1 recommendation, and the probation

officer concluded that, due to his failure to disclose the information about his Califo rnia record,

Cordero obstructed justice and was not entitled to a downward adjustment.

At sentencing, Cordero moved to withdraw his guilty plea based on his object io n t o t he

original PSR: he understood the plea agreement to require the Government to recommend a 13-year

cap. The district court denied the request to withdraw the guilty plea and overruled the objection.

While the Government did not recommend the §5K1.1 downward departure or the 13-year cap, it

did move to dismiss the remaining counts against Cordero. The di stri ct court adj usted Cordero’s

base offense level upward on the obstruction of justice finding, and found that the §5K1.1 adjustment

was not warranted, yet it did retain the downward adjustment for acceptance of responsibility and

it dismissed the remaining counts. Cordero timely appealed his sentence of 210 months imprisonment

followed by five years supervised release.

DISCUSSION

The Government argues that Corde ro ’s appeal should be dismissed because he waived his

right to appeal. Cordero argues that the Government breached the plea agreement by failing to4

recommend the 13-year cap and that he did not waive his right to challenge the Government’s breach

of the plea agreement.

Cordero is not directly attacking his sentence. According to 18 U.S.C. §3742, a direct attack

occurs where a defendant argues that the sentence was imposed in violation of law, or was imposed

as a result of an incorrect application of the sentencing guidelines, or is greater than the guideline

maximum range. Cordero is alleging none of these things, rather he is arguing that by failing to make

the 13-year cap recommendation, the Government breached the agreement. Cordero waived the right

to directly attack his sentence. He did not waive the right to allege that the Government breached

the plea agreement..

The Government further argues that Cordero failed to raise the breach i ssue in t he district

court and therefore cannot raise it on appeal. While Cordero did not specifically argue that the

Government breached the plea agreement, he ra ised t he issue in his objections to the PSR and at

sentencing as the basis for his motion to withdraw his guilty plea. Disputes concerning the terms of

a plea agreement generally involve resolution of factual issues by the district court. U nited States v.

Gibson

, 48 F.3d 876 , 878 (5th Cir.), c ert. denied

__ U.S.

__, 116 S. Ct. 150, 133 L. Ed. 2d 195

(1995). Where the issue is raised before the district court, this Court reviews the district co urt ’s

factual findings for clear error. I d

. Thus, the district court’s resolution of factual issues concerning

Cordero’s plea agreement will be reviewed for clear error.

As Cordero contends, where the Government has breached a plea agreement, the defendant

may withdraw his guilty plea. “The interest of justice and standards of good faith in negotiating plea

bargains require reversal where a plea bargain is breached.” United States v. Valencia , 985 F.2d 758,

761 (5th Cir. 1993). The defendant may elect specific performance or withdrawal of his guilty plea5

as remedy for breach of a plea agreement. V alencia

, 985 F.2d at 761. However, the defendant bears

the burden of proving the underlying facts that establish a breach by preponderance of the evidence.

United States v. Garcia-Bonilla , 11 F.3d 45, 46 (5th Cir. 1993)(citation omitted). T o

determine whether the Government has breache d a plea agreement, the Court must consider

“whether the government’s conduct is consistent with the parties’ reasonable understanding of the

agreement.” G arcia-Bonilla

, 11 F.3d at 46. In construing a plea agreement, we apply an objective

standard to determine what constitutes a reasonable understanding and whether the agreement has

explicit expression and reliance. See United States v. Chagra , 957 F.2d 192, 194 (5th Cir. 1992).

In arguing that the Government breached the plea agreement when it failed to recommend the

13-year cap, Cordero contends that th e Go vernment’s promise to recommend the cap was not

contingent upon his providing “substantial assistance,” as provided by U.S.S.G. §5K1.1. He contends

that the word “and” separates his obligation to provide “substantial assista nce” from the

Government’s obligation to recommend the 13-year cap, and therefore the recommendation was not

dependant upon his cooperation.

A reasonable reading of the language highlighted by Cordero indicates that the Government’s

three obligations are predicated on Corde ro ’s performance of his three obligations. The

Government’s obligations were (1) to dismiss the remaining counts, (2) to recommend the §5K1.1

departure (should the Government feel one was warranted), and (3) to recommend the 13-year cap.

In exchange, Cor dero was obligated to (1) plead guilty to Count One, (2) persist with that plea

through s ent encing, AND (3) provide substantial assistance. Nothing in that language reasonably

indicates that the government must recommend the 13-year cap even if Cordero fails to provide

substantial assistance. To the contrary, the Government ’s perfo rmance of its obligations is6

predicated on Cordero’s performance of all three of his obl igat io ns, and it explicitly retains its

discretion in

det ermining whether Cordero had provided enough assistance to justify the §5K1.1

departure. Cordero does not argue that he in fact provided substantial assistance.

Moreover, the agreement further provides that Cordero must be completely truthful with the

Government, otherwise the Government is released from its obligations. Cordero was not completely

truthful: he failed to make mention of his California record. As Cordero did not fulfill his obligations

to provide substantial assistance and to be completely truthful, the district court’s factual finding that

the Government was not required to make the 13-year sentencing recommendation is not clear error,

given a logical reading of the plea agreement terms and Cordero’s agreement to this interpretation

at arraignment. Therefore, the sentence is AFFIRMED.