IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50599

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CELSO ZAMARRIPA-RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-1243-4

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Celso Zamarripa-Ramirez pleaded guilty, pursuant to a plea agreement, 

to one count of conspiracy to transport aliens and was sentenced to 30 months

of imprisonment. Although he acknowledges that he signed an appeal waiver 

in connection with his plea agreement, he argues that he should be able to 

appeal his sentence because the government breached the plea agreement by 

not moving for an acceptance-of-responsibility reduction under Section 3E1.1 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 9, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50599

of the U.S. Sentencing Guidelines (“U.S.S.G.”). Because Zamarripa-Ramirez 

has failed to show that the government breached the plea agreement, we 

DISMISS the appeal. 

FACTUAL BACKGROUND

In November 2013, Zamarripa-Ramirez entered into a “Fast-Track Plea 

Agreement,” pleading guilty to one count of conspiracy to transport aliens, in 

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) & (B)(i). The plea agreement 

contained a two-page factual basis. In exchange for Zamarripa-Ramirez’s plea, 

the Government stated: “This office shall not contest any Pre-Sentence 

Investigation Report (‘PSR’) recommendations that the applicable guideline 

offense levels be adjusted to reflect Defendant’s acceptance of responsibility, as 

provided by Sentencing Guidelines § 3E1.1(a) & (b).” The agreement also

provided that if the court found that Zamarripa-Ramirez was entitled to the 

adjustment and that his base offense level before the adjustment was at least 

level 16, the government agreed “to move for the third-level reduction at the 

time of sentencing based on the defendant’s timely agreement to plead 

guilty[.]” The agreement also included an appeal waiver provision. 

The PSR, which was prepared by the United States Probation Office 

prior to sentencing, did not recommend that Zamarripa-Ramirez be awarded 

an adjustment for acceptance of responsibility. The PSR stated that 

“[a]lthough the defendant has pleaded guilty to Conspiracy to Transport Illegal 

Aliens, his statement [during the presentence interview] . . . appears to 

minimize his role in the offense. The statement provided by the defendant does 

not merit an adjustment for acceptance of responsibility under USSG 

§ 3E1.1(a).” At sentencing, the district court asked the government why there

had been no recommendation for an acceptance-of-responsibility reduction. 

The Government responded: “Your Honor, it’s my understanding that the 

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acceptance of responsibility interview [that] was conducted with the defendant 

following his plea of guilty. . . . [d]iffered from the facts in his plea agreement, 

and that he was minimizing his role in the offense, he was not fully accepting

responsibility.” Zamarripa-Ramirez’s counsel then spoke on the issue and 

explicitly stated that he was not objecting to the PSR’s refusal to recommend 

a reduction because “we looked at the final . . . offense level and the final 

outcome, we felt that that was a fair sentence.” 

DISCUSSION

On appeal, Zamarripa-Ramirez argues that the appeal waiver in his plea 

agreement is not enforceable because the government breached the plea 

agreement. He further claims that the district court clearly erred by denying 

him the adjustment for acceptance of responsibility.

“The party alleging a breach of the plea agreement bears the burden of 

proving the underlying facts establish a breach by a preponderance of the 

evidence.” United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). “We 

must interpret the plea agreement like a contract, in accord with what the 

parties intended.” United States v. Bond, 414 F.3d 542, 545 (5th Cir. 2005); see 

also Gonzalez, 309 F.3d at 886 (“[This] court must determine whether the 

government’s conduct is consistent with the parties’ reasonable understanding 

of the agreement.” (internal quotation marks and citation omitted)). Because 

Zamarripa-Ramirez did not argue to the district court that the plea agreement 

was breached, we review this claim for plain error. See Puckett v. United 

States, 556 U.S. 129, 135-36 (2009). 

Zamarripa-Ramirez argues that “when the government suggested to the 

district court that he not receive credit for acceptance of responsibility they for 

all practical purposes disagreed and contested that Zamarripa’s offense level 

should be adjusted to reflect his acceptance of responsibility.” He claims that 

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the government’s opposition of the acceptance-of-responsibility reduction 

breached the plea agreement. We disagree.

Zamarripa-Ramirez’s plea agreement clearly provided that the 

government agreed “not [to] contest any [PSR] recommendations that the 

applicable guideline offense levels be adjusted to reflect Defendant’s 

acceptance of responsibility, as provided by Sentencing Guidelines § 3E1.1(a)

& (b).” The PSR did not contain any such recommendations and, accordingly,

the government did not contest any PSR recommendations in violation of the 

plea agreement. Instead, the government responded to the district court’s

questioning and explained its “understanding” of why the PSR did not include 

an acceptance-of-responsibility recommendation. This explanation by the 

government did not breach its agreement with Zamarripa-Ramirez. 

Because Zamarripa-Ramirez has not proven that the government 

breached its plea agreement, the appeal waiver contained in that agreement is

enforceable and bars the current appeal. Therefore, to the extent ZamarripaRamirez argues that the district court erred in not granting him a reduction 

for acceptance of responsibility, the argument is barred by the appeal waiver 

in his plea agreement. Bond, 414 F.3d at 544.

The appeal is DISMISSED.

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