FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 08/19/98 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 97-5099

Non-Argument Calendar

________________________

D.C. Docket No. 95-Cr-6124-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERIBERTO MAHIQUE,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Southern District of Florida

_________________________

(August 19, 1998)

Before TJOFLAT and EDMONDSON, Circuit Judges, and CLARK, Senior Circuit Judge.

PER CURIAM:
1

 21 U.S.C. § 846.

2

 R1-74 at 3.

3

 R1-74 at 4; 18 U.S.C. § 3553(f)(1)-(5).

2

Heriberto Mahique appeals his 188-month sentence imposed for

conspiracy to possess cocaine with the intent to distribute.1

Mahique entered into a plea agreement with the government in which the

government agreed not to oppose Mahique's request for a reduction of his base offense

level based on acceptance of responsibility if he made a "full and accurate disclosure

to the Probation Office of the circumstances surrounding the defendant's relevant

conduct."2

 The government also agreed not to oppose Mahique's request to be

sentenced under the safety-valve provision "if he is eligible, and the Court makes

appropriate findings regarding the criteria . . . ."3

 Further, the government agreed not

to oppose Mahique's request to be sentenced at the lower end of the applicable

Guidelines range, but reserved the right to make a recommendation as to the quality

and quantity of punishment and to inform the court and probation of all facts relevant

to sentencing.

Mahique failed to appear at his original sentencing, and was sentenced

only after he was arrested on a fugitive warrant in Mexico and extradited to the United

States. Mahique made a full confession, but then attempted to retract part of his

admissions during his interview for the presentence report. Based on Mahique’s
3

fleeing the jurisdiction and altering his story, the government opposed a reduction for

acceptance of responsibility and sentencing under the safety-valve provision. Mahique

moved to withdraw his plea and to enforce the plea agreement, arguing that his plea

was involuntary and that the government had breached the plea agreement.

Before imposing sentence, the district court asked Mahique and his

attorney if they had anything to say, but neither requested sentencing at the low-end

of the range. Based on the government's request, the district court sentenced Mahique

at the high-end of the range finding that he had given perjured testimony. The parties

said that there were no objections when asked by the district court after the imposition

of sentence.

On appeal, Mahique asserts that the district court erred in not granting

his motions to withdraw his plea or to enforce specifically the plea agreement,

asserting that the government breached the plea agreement by opposing his request for

a reduction for acceptance of responsibility and to be sentenced under the safety-valve

provision of 18 U.S.C. § 3553(f). Mahique also asserts that the government breached

the plea agreement by recommending that he be sentenced at the high-end of the

applicable guideline range. 
4

 United States v. Carlson, 87 F.3d 440, 447 (11th Cir. 1996), cert. denied, U.S. ,

118 S.Ct. 238, 139 L.Ed.2d 169 (1997).

5

 United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906, 111

S.Ct. 275, 112 L.Ed.2d 230 (1990), overruled on other grounds, United States v. Morrill, 984

F.2d 1136 (11th Cir. 1993).

6

 United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993), cert. denied, 510

U.S. 1062, 114 S.Ct. 734, 126 L.Ed.2d 698 (1994).

4

Whether the government has breached a plea agreement is a question of

law that this court reviews de novo.

4

 If, however, the district court affords a defendant

an opportunity to object after the imposition of sentence, and he fails to do so, any

objections to the sentence are barred absent manifest injustice.5

 This court equates

the manifest injustice inquiry with review for plain error.6

 

Upon review of the presentencing report, the sentencing transcript, the

plea agreement, the district court's order, and after considering the parties' briefs and

the relevant law, we find no reversible error.

The government did not breach the plea agreement. The government's

promise not to oppose Mahique's request for a reduction of sentence was conditioned

on Mahique making a full and accurate disclosure to probation, which Mahique did

not do. In the plea agreement the government preserved its right to support the

probation recommendation regarding acceptance of responsibility, and did so by

opposing any reduction. Further, the government had a right to oppose Mahique's
7

 United States v. Ashurst, 96 F.3d 1055, 1057 (7th Cir. 1996) (plea agreement does not

obligate the government to recommend acceptance of responsibility when defendant committed

offense when on release pending sentencing); also see United States v. Pace, 17 F.3d 341, 343

(11th Cir. 1994) (district court is authorized to consider subsequent criminal conduct, even if

unrelated, in determining whether a decrease for acceptance of responsibility is appropriate). 

8

 18 U.S.C. § 3553(f)(5).

9

 United States v. Ajugwo, 82 F.3d 925, 928-929 (9th Cir. 1996), cert. denied, U.S. ,

117 S.Ct. 742, 136 L.Ed.2d 680 (1997).

5

request for a reduction based on his less than full and accurate disclosure to probation

and his flight from jurisdiction.7

The government's promise in the plea agreement not to oppose Mahique's

request to be sentenced under the safety-valve provision was conditioned on him

being eligible for the provision and the district court finding that he met all criteria for

application of the provision. The fifth criteria of the safety-valve provision requires

that the defendant truthfully provide to the government all information and evidence

he has regarding the offense.8

 Because the government argued that Mahique was

ineligible for the safety-valve provision since he did not meet the criteria--a condition

of the plea agreement--there was no breach.9

We conclude that the government's opposition to a reduction for

acceptance of responsibility and sentencing under the safety-valve provision did not

constitute a breach of the plea agreement. Because Mahique never requested to be

sentenced at the low-end of the sentencing range, the government's recommendation
6

that Mahique be sentenced at the high-end of the sentencing range was not a breach

of the plea agreement.

AFFIRMED.