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. 08-30707

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MICHAEL DECLOUET

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-CR-198-1

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Michael Declouet appeals his guilty-plea convictions and sentences for

conspiracy to commit Hobbs Act armed robbery, in violation of 18 U.S.C.

§ 1915(a); Hobbs Act armed robbery of Studio 440 in Jefferson, Louisiana, in

violation of 18 U.S.C. § 1951(a); being a felon in possession of a firearm, in

violation of 21 U.S.C. § 922(g); and carjacking, in violation of 18 U.S.C. § 2119.

In the factual basis for the plea, Declouet admitted his participation in

numerous uncharged robberies undertaken during the course of the conspiracy

United States Court of Appeals

Fifth Circuit

F I L E D

May 28, 2009

Charles R. Fulbruge III

Clerk
No. 08-30707

2

in which he was engaged, and those robberies were included in the calculation

of his sentence under the Guidelines. Declouet now argues that the use of

incriminating statements he made during debriefing regarding the other

uncharged robberies to enhance his sentence constituted a breach of the

immunity clause contained in the plea agreement. More specifically, Declouet

contends, for the first time on appeal, that the district court erred in relying on

the exception for information previously obtained from other sources under

U.S.S.G. § 1B1.8(b)(1), urging that the plea agreement did not contain such an

exception and that there is no basis under contract law for reading such

exception into the plea agreement.

Although Declouet waived his right to appeal his conviction and sentence

as part of his plea, the waiver does not prevent this court from addressing the

merits of the issue whether the Government breached the plea agreement. See

United States v. Keresztury, 293 F.3d 750, 755-56 (5th Cir. 2002)); see also

United States v. Price, 95 F.3d 364, 366-68 (5th Cir. 1996). Nevertheless,

because the breach issue Declouet now raises was not presented to the district

court, review is for plain error only. See Puckett v. United States, ___ S. Ct. ___,

2009 WL 763354, *4-5 (March 25, 2009). To demonstrate plain error, the

appellant must make a four-pronged showing: 1) there must be a deviation from

a legal rule that was not intentionally abandoned or affirmatively waived by the

appellant; 2) the legal error was clear or obvious, i.e., not subject to reasonable

dispute; 3) the error affected his substantial rights; and 4) if the first three

prongs are satisfied, the appellate court has the discretion to correct the error

only if it seriously affects “the fairness, integrity or public reputation of judicial

proceedings.” Id. at *5 (internal quotation marks and citation omitted).

Declouet has not met his burden of demonstrating plain error arising out

of the alleged breach of his plea agreement. He urges that whether the

information regarding the uncharged robberies came from other sources prior

to his debriefing is irrelevant because the plea agreement does not contain the
No. 08-30707

3

exceptions listed under § 1B1.8(b), meaning that the plea agreement provides

greater immunity than § 1B1.8. According to Declouet, the Government could

have expressly listed the exceptions contained in § 1B1.8 in the plea agreement,

and that, by failing to do so, the Government relinquished them. However, this

court has found that the use of incriminating statements made during debriefing

did not violate the plea agreement despite any promise of immunity, implicitly

reasoning that the protections of § 1B1.8 were incorporated into the plea

agreement. See United States v. Gibson, 48 F.3d 876, 879 (5th Cir. 1995).

Declouet contends that Gibson is inapposite because it did not specifically

address the issue presented here, to wit: whether the general principles of

contract law prohibit a court from reading into a plea agreement the exceptions

listed in § 1B1.8(b) when they are not explicitly incorporated therein. However,

he acknowledges that there is no Fifth Circuit authority supporting his

contention.

Assuming arguendo that Gibson does not foreclose Declouet’s argument,

he has not shown any clear or obvious error given the absence of any Fifth

Circuit authority directly supporting the contention that the Government waives

the exceptions listed in § 1B1.8(b) by not specifically including them in the

written plea agreement. See United States v. Salinas, 480 F.3d 750, 756 (5th

Cir. 2007) (“An error is considered plain, or obvious, only if the error is clear

under existing law.”); United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998);

see also Puckett, 2009 WL 763354 at *9 (indicating that there is no clear or

obvious error when the scope of the Government’s obligations under the plea

agreement are open to doubt). Accordingly, the district court’s judgment is

AFFIRMED.