* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be published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 5 TH C IR . R. 47.5.4.

2 United States v. Drobny 955 F.2d 990, 994-995 (5th Cir. 1992). UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-60050

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHARLIE GLENN COOK,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:94-CV-56-B

November 10, 1998

Before WISDOM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM: *

Federal prisoner Charlie Glenn Cook appeals from the district court’s denial of his petition

for habeas relief under 28 U.S.C. § 2255. The district co urt held that all of Cook’s claims except

ineffective assistance of counsel were procedurally barred. The district court made this ruling prior

to any motion to dismiss by the government. As the government did not have the opportunity to raise

the issue of procedural bar, and as that issue may only be addressed when raised by the government,

this Court will address Cook’s claims on the merits. 2 As Cook’s assignments of error are without

merit, we affirm the judgment of the district court.3 United States v. Thomas , 12 F.3d 1350, 1371 (5th Cir. 1994).

4 Id.

5 Record, Vol. 3, 197.

6 United States v. Ballis , 28 F.3d 1399, 1409 (5th Cir. 1994). Cook’s first contention is that he received ineffective assistance of counsel at sen tencing.

Cook contends that the district court applied the 1988 sentencing guidelines to a crime committed

in 1987, and that counsel failed to object to this ex post facto application of law. The district court

applied the 1988 guidelines based on a finding of fact that Cook took part in a continuing criminal

enterprise until March 8, 1989. This court reviews a finding of fact to determine if that finding was

“clearly erroneous.” 3

Cook contends that there is no evidence in the record to support the position that he engaged

in any criminal conduct after July 22, 1988. He further contends that the 1988 guidelines were not

yet in effect at that time. Despite Cook’s contention that he did not engage in criminal conduct after

July of 1988, he does not contend, nor does he present any evidence to support the notion that he

took affirmative steps to withdraw from the criminal enterprise. Absent such evidence the finding of

fact is not clearly erroneous, and there is no ex post facto violation. 4

Cook’s second contention is that he was denied due pro cess o f law by the government’s

breach of his plea agreement. Under the agreement, the government was to recommend a sentence

of ten years without parole for the continuing criminal enterprise. The agreement also provided that

Cook would give the IRS, DEA, and other law enforcement agencies “full and truthful statements...

as to all knowledge he may have of other persons who may have participated in any way in these and

all related offenses.” 5 In the end, Cook would not name the source of his narcotics, stating that such

cooperation would jeopardize the lives of his family members.

In examining a p lea agreement for a breach, the court applies the law of contracts. 6 Cook

breached the agreement to provide information regarding other persons who participated in the crime.

Once Cook breached the agreement, the g o vernment was no longer obligated to recommend a

sentence of ten years. Cook suffered no due process violation.7 Strickland v. Washington

, 466 U.S. 668, 689-694 (1984 ). Appellant must show counsel’s

performance was deficient, and that the deficient performance prejudiced his defense.

8 United States v. Rodriguez , 897 F.2d 1324, 1328 (5th Cir. 1990).

9 United States v. Marmolejo , 106 F.3d 1213, 1217 (5th Cir. 1997). Co o k next contends that his counsel was ineffective for failing to withdraw the guilty plea

when it became clear the government would not re commend the ten y ear sentence. Cook’s

contention is based on the theory that the government breached the plea agreement, and his attorney

failed to object. As this Court has just explained, the government did not breach the plea agreement,

so counsel could not be deficient for failing to object to such a “breach.” 7

Cook further contends he received ineffective assistance of counsel, in that counsel did not

object to the presentence investigative report (PSR). The PSR recommended an enhancement of

sentence for obstruction of justice, asserting that Cook threatened a government witness. The PSR

also recommended no downward adjustment for acceptance of responsibility, even though Cook pled

guilty, and, to some extent, cooperated with the government.

For the district court to sustain an objection to the facts outlined in the PSR, the defendant

must show that these allegations are “materially untrue.” 8 At no time has Cook produced any

evidence that the allegation of threatening a witness is untrue, other than the self-serving testimony

he would have given. As the objection would have been overruled on that basis, the failure to object

is not ineffective assistance.

Further, it is exceedingly rare for a defendant to have his sentence enhanced for obstruction

of justice and still receive a downward adjustment for acceptance of responsibility. 9 The district

judge obviously believed the allegations of obstruction outlined in the PSR, and could reasonably rule

from that belief that Cook had failed to accept responsibility for his crimes.

Cook’s next assignment of error is that the district judge violated Federal Rule of Criminal

Procedure 11(e)(2) by failing to advise him that if the court chose not to accept the go vernment’s

sentencing recommendation, he would not be permitted to withdraw his guilty plea. As Cook raises10 Robertson v. Plano City of Tex ., 70 F.3d 21, 23 (5th Cir. 1995).

11 United States v. Timmreck , 441 U.S. 780, 783 (1979).

12 See §5K2.0. this issue for the first time on appeal, this Court reviews for plain error. 10 A Rule 11 violation may

be addressed in a § 2255 motion only if the error resulted in a “complete miscarriage of justice.” 11

This case presents no such error. In fact, the assignment of error is totally inapplicable to the facts

of the case. The district court did not reject the government’s sentencing recommendat io n. The

government recommended a sentence at the lower end of the guidelines, and that was the sentence

meted out by the court. As the district cour t fo llo wed the government’s recommendation, the

assignment of error is without merit.

Cook’s final contention is that his counsel was ineffect ive in advising him to accept a plea

agreement Cook now describ es as “illusory.” The plea agreement did not specifically mention a

downward departure based on a § 5K1.1 motion. Cook contends that absent such a motion, the

district court did no t have t he authority to reduce Cook’s sentence to ten y ears. Had the plea

agreement been enforced, it would have been governed by the law of contracts. Under that law, a

§ 5K1.1 motion may have been a n implied term of the contract, necessary to provide the

consideration for the bargain.

Even if it i s assumed that the plea agreement contains no implicit terms, the district court

could have departed downwards based on reasons other than substantial assistance. 12 As the court

had the authority to depart downward, the plea agreement was not illusory. Absent an illusory plea

agreement, the claim of ineffective assistance of counsel is without merit.

AFFIRMED.