* 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should not be published and is not precedent except under the limited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. 07-51372

Conference Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CARLOS GUERRERO

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:06-CR-961-2

Before KING, BARKSDALE, and OWEN, Circuit Judges.

PER CURIAM:*

Carlos Guerrero appeals the sentence imposed following his guilty plea

conviction for conspiracy to possess with intent to distribute 100 kilograms or

more of marijuana. Guerrero argues that the government violated the terms of

his plea agreement by failing to recommend a sentence below the statutory

minimum pursuant to the application of the safety valve provisions of 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2, further causing the district court to plainly err

by imposing the sentence without considering the safety valve. The Government

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-51372

2

asserts that Guerrero’s appeal is barred by the appeal waiver in his plea

agreement.

In the appeal waiver, Guerrero waived his right to appeal his conviction

and sentence on any ground except for prosecutorial misconduct, ineffective

assistance of counsel, and a sentence above the statutory maximum. The record

shows that the appeal waiver was knowing and voluntary and is enforceable.

See United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992). Guerrero

asserts that the appeal waiver is not applicable because the Government

violated the plea agreement and committed prosecutorial misconduct by not

affirmatively seeking the application of the safety valve provisions.

The plea agreement required that the Government not oppose the

application of the safety valve provisions if Guerrero qualified, but did not

require the Government to request their application. That the Government did

not request application of the safety valve provisions did not violate the

provision of the plea agreement requiring the parties to request that the court

consider the provisions ofthe Sentencing Guidelines in calculating the sentence.

The probation officer considered the application of the safety valve provisions in

the presentence report (PSR) and determined that Guerrero had not qualified

for them. Neither Guerrero nor the Government objected to the PSR, and the

district court adopted the findings in the PSR, thereby adopting the

consideration and rejection of the application of the safety valve provisions. 

Guerrero has not shown that the Government breached the plea agreement.

Furthermore, as Guerrero has not shown that the prosecutor engaged in any

improper behavior, he has not shown that the Government committed

prosecutorial misconduct. See United States v. Fields, 483 F.3d 313, 358-60 (5th

Cir. 2007), cert. denied, 128 S. Ct. 1065 (2008). As Guerrero’s claim on appeal

does not fit into any exceptions to the appeal waiver, the appeal waiver applies
No. 07-51372

3

to the circumstances at issue and bars Guerrero’s appeal. See United States v.

Bond, 414 F.3d 542, 544 (5th Cir. 2005).

AFFIRMED.