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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40317

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAMON ANIBEL BELLORIN-TORRES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:07-CR-1178-ALL

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ramon Anibel Bellorin-Torres pleaded guilty to being a previouslydeported alien who was found unlawfully in the United States. He appeals only

his sentence.

In exchange for Bellorin’s guilty plea, the Government agreed, inter alia,

to move for a two-level reduction in Bellorin’s offense level, pursuant to United

United States Court of Appeals

Fifth Circuit

F I L E D

July 21, 2009

Charles R. Fulbruge III

Clerk
No. 08-40317

2

States Sentencing Guidelines § 5K3.1, and to recommend that Bellorin be

sentenced at the low end of the applicable advisory guidelines sentencing range.

At sentencing, however, the Government did not make a § 5K3.1 motion and,

when asked for its position on sentencing, requested a sentence at the high end

of the sentencing range. Bellorin was sentenced, inter alia, to 78-months’

imprisonment.

 As held recently in Puckett v. United States, 129 S. Ct. 1423, 1428 (2009),

because the breach-of-the-plea-agreement issue was raised for the first time on

appeal, review is only for plain error. To show reversible plain error, Bellorin

must show a clear or obvious error that affects his substantial rights. Id. at

1429. If he makes such a showing, our court has discretion to correct the error,

but, generally, will correct it only if it seriously affects “the fairness, integrity[,]

or public reputation of judicial proceedings”. Id. (quoting United States v. Olano,

507 U.S. 725, 736 (1993)). The Government, through omission and commission,

breached the plea agreement. Therefore, as the Government concedes, there was

a clear or obvious error. See id.

Concerning whether this plain error affected Bellorin’s substantial rights,

there is nothing in the record to indicate that the district court would not have

granted a § 5K3.1 motion as a matter of course. Without the § 5K3.1 two-level

reduction, Bellorin’s advisory sentencing range was 70 to 87 months; with the

reduction, it would have been 57 to 71 months. Additionally, consistent with

recommendations by both the Government and the probation officer that

Bellorin be sentenced at the high end of the sentencing range, the district court

imposed a mid-range sentence of 78 months. 

There is a reasonable probability that, had the § 5K3.1 motion been made,

Bellorin would have received a lesser sentence. And, had the Government

recommended a low-end sentence, Bellorin’s sentence would likely have been

lesser still. 
No. 08-40317

3

Because the error likely affected the outcome of the sentencing

proceedings, Bellorin has shown that his substantial rights were affected.

Puckett, 129 S. Ct. at 1433 n.4. Further, the error affected the fairness,

integrity, or public reputation of these proceedings. Accordingly, pursuant to our

discretion, Bellorin’s sentence is vacated and this matter is remanded to district

court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.