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should not be published and is not precedent except under the limited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. 07-40559

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MARIO URIEL SANCHEZ-ALVAREZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:06-CR-177-3

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Mario Uriel Sanchez-Alvarez appeals his 108-month sentence following his

guilty plea conviction for conspiracy to possess with intent to distribute more

than five kilograms of cocaine. Sanchez-Alvarez pleaded guilty pursuant to a

written plea agreement. He argues for the first time on appeal that the

Government breached the term in the agreement requiring a recommendation

for a minor role adjustment. He points to the following statement made by the

United States Court of Appeals

Fifth Circuit

F I L E D

February 18, 2009

Charles R. Fulbruge III

Clerk
No. 07-40559

 We note that the United States Supreme Court has granted certiorari on the 1

question of what standard of review applies to a forfeited claim that the government

breached a plea agreement. United States v. Puckett, 505 F.3d 377 (5th Cir. 2007), cert.

granted, 171 L. Ed. 2d 932 (Oct. 1, 2008). Because we find no breach under any

standard, we conclude that the standard of review question does not control the

outcome of this case.

2

prosecutor at the sentencing hearing: “My -- you know, my gut feeling is there

was more involvement, but I don’t have any evidence to prove that he has

additional involvement beyond his role in repackaging the narcotics at the

location.” Sanchez-Alvarez further asserts that the Government breached the

agreement by not objecting to the probation officer’s characterization of him as

being “more culpable than the other defendants” and that he “had a larger role

within the conspiracy.”

If a defendant fails to object to an alleged breach in the district court, as

is the case here, review is for plain error. See United States v. Branam, 231 F.3d

931, 933 (5th Cir. 2000). “A defendant asserting a breach bears the burden of 1

proving, by preponderance of the evidence, the underlying facts establishing a

breach.” United States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995) (footnote

omitted). This court applies general principles of contract law in interpreting a

plea agreement. United States v. Cantu, 185 F.3d 298, 304 (5th Cir. 1999).

“[T]his court considers whether the government’s conduct is consistent with the

defendant’s reasonable understanding of the agreement.” Id. (quotation marks

and citation omitted).

Sanchez-Alvarez has not shown a breach of the plea agreement. As the

Government argues, Sanchez-Alvarez takes the prosecutor’s statement out of

context. A review of the sentencing transcript reflects that the statement was

made during a discussion at sentencing of whether Sanchez-Alvarez qualified for

a decrease pursuant to the “safety-valve” provision. As for a minor role

adjustment, the sentencing transcript reflects that the prosecutor advised the

district court that there was a stipulation at the rearraignment that the
No. 07-40559

3

Government would recommend a minor role adjustment. In support of that

recommendation, the prosecutor stated that it was the Government’s belief that

Sanchez-Alvarez did not have a “supervisor role” and that “[h]is role was limited

to that of repackaging the cocaine.” The district court’s rejection of the

Government’s recommendation does not constitute a breach of the plea

agreement. Rather, the transcript reflects that the Government’s conduct was

“consistent with the defendant’s reasonable understanding of the agreement.”

See Cantu, 185 F.3d at 304. Accordingly, Sanchez-Alvarez has failed to establish

a breach of the plea agreement that is plain, obvious, or affected his substantial

rights. See Marek, 238 F.3d at 315.

Sanchez-Alvarez also argues that the district court erred in not granting

him an adjustment pursuant to U.S.S.G. § 3B1.2(b) based on his role as a minor

participant in his offense of conviction. The revised presentence report reflects

that one of Sanchez-Alvarez’s codefendants stated that Sanchez-Alvarez was

sent “to oversee the cocaine delivery and possibly take possession of it.”

Although Sanchez-Alvarez objected to the accuracy of this statement, he

presented no rebuttal evidence in support of his objection. Thus, the district

court did not clearly err in relying on the revised presentence report. See United

States v. Alford, 142 F.3d 825, 831-32 (5th Cir 1998). In addition, SanchezAlvarez acknowledged that he agreed to help repackage a large quantity of

cocaine, which was a step leading to its further distribution. Because the district

court’s finding that Sanchez-Alvarez was not a minor participant “is plausible

in light of the record read as a whole,” we conclude that the district court did not

clearly err in finding that he was not entitled to this reduction. See United

States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

Sanchez-Alvarez further argues that the district court erred by enhancing

his base offense level by two levels for possession of a dangerous weapon. See

U.S.S.G. § 2D1.1(b)(1). Sanchez-Alvarez asserts he was unaware of the presence

of any firearms in the house where the cocaine was found. A defendant’s
No. 07-40559

4

guidelines offense level may be enhanced under § 2D1.1(b)(1) if the possession

of a firearm by a coconspirator was reasonably foreseeable. See United States

v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006). Because there is evidence that

Sanchez-Alvarez’s codefendant possessed a firearm while he and SanchezAlvarez were engaged in repackaging a large quantity of cocaine, the district

court did not clearly err by finding that Sanchez-Alvarez’s codefendant’s

possession of a dangerous weapon was reasonably foreseeable. See United States

v. Thomas, 120 F.3d 564, 574 (5th Cir. 1997); United States v. Castillo, 77 F.3d

1480, 1498 (5th Cir. 1996). Furthermore, the record reflects that the district

court complied with Rule 32 of the Federal Rules of Criminal Procedure by

considering the relevant factors and adopting the revised presentence report’s

facts regarding the dangerous weapon enhancement. See United States v.

Sherbak, 950 F.2d 1095, 1099 (5th Cir. 1992). Accordingly, the judgment of the

district court is AFFIRMED.