IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20327

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

PEDRO ROSALES,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-536-1

Before REAVLEY, PRADO, and COSTA, Circuit Judges.

PER CURIAM:*

Pedro Rosales pleaded guilty to distribution of child pornography. He 

was sentenced to 232 months in prison and five years of supervised release. 

He argues on appeal that by advocating for an obstruction of justice

enhancement, the Government breached the plea agreement wherein it had 

agreed not to oppose a reduction for acceptance of responsibility. 

 

* 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

August 14, 2015

Lyle W. Cayce

Clerk

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No. 14-20327

2

STANDARD OF REVIEW

Typically, this court reviews an assertion that the Government breached 

the plea agreement de novo. United States v. Munoz, 408 F.3d 222, 226 (5th 

Cir. 2005). However, because Rosales did not object in the district court to the 

Government’s alleged breach, review is for plain error. Id.; see Puckett v. 

United States, 556 U.S. 129, 135-36 (2009). To establish plain error, Rosales 

must show a forfeited error that is clear or obvious and that affects his 

substantial rights. Puckett, 556 U.S. at 135. If he makes such a showing, this 

court has the discretion to correct the error if it seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Id. 

DISCUSSION

In assessing whether a plea agreement was breached, this Court 

“appl[ies] general principles of contract law, construing the terms strictly 

against the government as drafter, to determine ‘whether the government’s 

conduct is consistent with the defendant’s reasonable understanding of the 

agreement.’” United States v. Hebron, 684 F.3d 554, 558 (5th Cir. 2012) 

(quoting United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008)). “[T]he 

Government must strictly adhere to the terms and conditions of its promises 

in the agreement.” Munoz, 408 F.3d at 226.

Thus, the issue here is whether the Government’s support of the 

obstruction of justice enhancement was inconsistent with Rosales’ reasonable 

understanding that the Government would not oppose his request for an

acceptance of responsibility reduction. The Second Circuit spoke strongly on 

this issue when it rejected defendant’s argument that “the relationship 

between obstruction of justice and acceptance of responsibility is so close that 

the government’s promise not to oppose a reduction for acceptance of 

responsibility should bar it from supporting an increase of sentence for 

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obstruction of justice.” United States v. Enriquez, 42 F.3d 769, 772 (2d Cir. 

1994). The court explained: 

There is unquestionably a strong relationship between the two 

issues, but in certain cases they may be subject to different 

considerations, making it appropriate for the court to assess both 

the enhancement and the reduction. As the most obvious example, 

a defendant may have engaged in conduct constituting an 

obstruction for which a penalty enhancement is appropriate, but 

subsequently come to accept responsibility fully—for the 

obstruction as well as the crime of conviction. Although in certain 

cases, a government concession on the one issue may be 

incompatible with an application for an enhancement on the other, 

we see no reason why this should be a general rule.

Id. at 773 (internal citations omitted).

This issue of alleged breach on the same grounds herein was presented 

for plain error review by this court in United States v. Hinojosa, 749 F.3d 407 

(5th Cir. 2014). The Hinojosa court also concluded that the Government’s 

agreement not to oppose acceptance of responsibility did not prohibit it from 

advocating for other relevant conduct. See id. at 413 (court “cannot conclude 

that Hinojosa’s ‘reasonable understanding of the agreement’ would include a 

term prohibiting the government for advocating for the inclusion of relevant 

conduct under the Guidelines.”). However, Hinojosa provided no guidance on 

whether the plea agreement in that instance was breached, reasoning that it 

was unnecessary to determine clear or obvious error if plain error’s third prong 

– whether defendant’s substantial rights were affected – could not be satisfied. 

Id. at 414. 

The instant case is factually distinguished from Hinojosa in that the 

Government here: (1) did not promise to “recommend” the acceptance of 

responsibility reduction, only promised “not to oppose” it; and (2) did not 

advocate against the acceptance of responsibility reduction, but only for the 

obstruction of justice enhancement. The factual distinctions, coupled with the 

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Government’s silence at sentencing on the acceptance of responsibility issue,

seem to require a different analysis from Hinojosa – whether there was indeed 

clear or obvious error. A showing of clear or obvious error requires that the 

error not be subject to reasonable dispute. Puckett, 556 U.S. at 135. In this 

case, however, the alleged breach may be reasonably disputed for the following 

reasons.

First, it is undisputed that the Government knew of the circumstances 

surrounding the obstruction enhancement when it agreed not to oppose 

acceptance of responsibility. While this may have been proper, the 

Government’s silence at sentencing about its position on the acceptance of 

responsibility matter may be perceived as impermissibly effecting an “end-run” 

around the plea agreement by complying with its express terms while taking 

actions inconsistent with those same terms. See United States v. Badaracco, 

954 F.2d 928, 941 (3d Cir. 1992).

Also, neither party attempted to correct the district court’s apparent 

misunderstanding that an obstruction of justice enhancement eliminates any 

possibility of acceptance of responsibility. The Guidelines state that: “[c]onduct 

resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the 

Administration of Justice) ordinarily indicates that the defendant has not 

accepted responsibility for his criminal conduct. There may, however, be 

extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may 

apply.” U.S.S.G. § 3E1.1, cmt. n.4 (emphasis added). It is clear that Rosales’ 

counsel had a responsibility to inform the court of the apparent

misunderstanding and to argue any extraordinary circumstances. 

Nonetheless, we believe the Government should have made the district court 

aware of its position in the plea agreement and of the district court’s ability to 

apply both adjustments in special cases. 

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CONCLUSION

For the reasons stated above, we cannot fully approve of the 

Government’s position but any error is not clear or obvious. Accordingly, the 

claim fails under plain error review.

AFFIRMED.

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