*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-21057

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMMITT MOORE, JR.,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Southern District of Texas

(CR-H-94-137-6)

 

December 9, 1996

Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.*

PER CURIAM:

Defendant-appellant Emmitt Moore, Jr. (Moore) complains on

appeal that the government breached the plea agreement by not

recommending that the defendant was a “minor” participant who

should be given a reduction in offense level under section 3B1.2(b)

of the Guidelines for having only a "minor" role in the offense.

At arraignment, the government stated that it would "recommend a
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three-point reduction under the Sentencing Guidelines for

acceptance of responsibility, timely notice of intent to plea and

a minor role." The government also agreed to file a motion for

downward departure under section 5K1.1 of the Guidelines if Moore

provided substantial assistance.

The PSR recommended a three-point reduction for acceptance of

responsibility, but recommended no reduction for minor role. The

government filed a motion for downward departure under section

5K1.1 as agreed. The district court granted this motion. Neither

at nor before sentencing did the defendant object to the PSR's

failure to give a reduction for a minor role under section

3B1.2(b). The PSR characterized Moore as the "right-hand man" of

Odis Jordan, a primary figure in the charged drug trafficking.

Defense counsel did not object to this characterization. The

defense did, however, seek to invoke the provisions of section

5C1.2 to avoid the statutory minimum sentence of ten years, and in

connection with that request sought a two-level decrease under

section 2D1.1(4). In response, the government urged that Moore

should not get relief under section 5C1.2 because, as Odis Jordan's

right-hand man, he did not meet the criteria of section 5C1.2(4)

("was not an organizer, leader, manager or supervisor"). Defense

counsel did not object to the government's argument in this

respect. The district court granted defense counsel's section

5C1.2 motion, as well as the requested accompanying two-level

decrease in offense level under section 2D1.1(4). This resulted in
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an offense level of 29——which is the precise offense level defense

counsel contended for——and a Guideline range of 87-108 months. The

district court sentenced Moore to 108 months, which was below the

otherwise applicable statutory minimum of 120 months. Moore had

requested consideration of a sentence of sixty months (a level well

below what the Guideline range would have been if a further twolevel reduction had been given).

We hold that Moore has forfeited (if not indeed waived) any

complaint concerning the government's argument that Moore was

Jordan’s right-hand man and its not recommending an additional twopoint reduction for a minor role in the offense under section

3B1.2(b). Defense counsel never sought a section 3B1.2(b)

reduction in the trial court, did not object to the PSR's failure

to recommend such a recommendation, and objected neither to the

government's failure to recommend such a reduction nor to its

comments that as Jordan’s right-hand man Moore was not entitled to

the benefits of section 5C1.2 because he did not meet the criteria

of clause (4) thereof. Nor did defense counsel object to the PSR’s

characterization of Moore as Jordan’s right-hand man. The district

court granted the section 5C1.2 motion and the two-level section

2D1.1(4) reduction sought by the defense, and utilized the offense

level of 29 that the defense requested.

Assuming that there was "plain error," and even that

substantial rights might have been affected, we conclude that this

is not an appropriate case for us to exercise our discretion to
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award relief despite the forfeiture. We conclude that affirmance

does not seriously affect the fairness, integrity, or public

reputation of judicial proceedings. See United States v.

Calverley, 37 F.3d 160, 164 (5th Cir. 1994), cert. denied 115 S.Ct.

1266 (1995). 

The judgment of the district court is accordingly

AFFIRMED.