### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 20577 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JERAMY JEROME GAGE , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:12

- CR

- 336

- 1

Before SMITH, B ARKSDALE, AND HAYNES, C ircuit Judges. PER CURIAM: * Jeramy Jerome Gage pleaded guilty , pursuant to a written plea agreement , to conspiring to possess , with intent to distribute , five kilograms or more of cocaine and less than 50 kilograms of marijuana , in violation of 21 U.S.C. §§ 841 and 846. The court sentenc ed him at the bottom of the applicable advisory G uidelines sentencing range to , inter alia , 292 months ’ imprisonment.

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 22, 2016

Lyle W. Cayce Clerk Case: 15-20577 Document: 00513647291 Page: 1 Date Filed: 08/22/2016No. 15

- 20577

2 Gage challenges his sentence, contending the Government breached the plea agreement in two ways

. T he plea agreement included a waiver of Gage’ s right to appeal his sentence ; but, obviously, the waiver is unenforceable if the Government breache d th e agreement. See United States v. Keresztury , 293 F.3d 750, 756

– 57 (5th Cir. 2002)

. Although the parties disagree on the applicable standard of review , we need not resolve that issue because Gage cannot make the requisite showing under either a plain

- error or de novo standard. See United States v. Le , 512 F.3d 128, 132 (5th Cir. 2007). Gage contends the Gov ernment agreed to recommend to the sentencing court: a 188

- month sentence; and a three

- point reduction for acceptance of responsibility. “[W]hen a guilty plea rest s in any significant degree on a promise or agreement of the [Government] , so that it can b e said to be part of the inducement or consideration, such promise must be fulfilled”. United States v. Valencia , 985 F.2d 758, 761 (5th Cir. 1993) (internal quotation marks omitted). The proper inquiry is whether the G overnment ’ s conduct comports with G age’s reasonable understanding of the agreement. United States v. Roberts , 624 F.3d 241, 245

– 46 (5th Cir. 2010). Gage “ bears the burden of demonstrating a breach of the agreement by a preponderance of the evidence ”

. United States v. Loza

- Gracia , 670 F.3d 639, 642 (5th Cir. 2012). Regarding the length of sentence, Gage maintains the Government undermined that agreement during the sentencing hearing , and “ essentially apologiz [ed] ” for its leniency. Nevertheless, th e record reflects the Government offer ed an explanation for that recommendation, which was also set forth in the plea agreement, but did not disavow, or apologize for , it. T he Government is not generally required to advocate enthusiastically for a particular Case: 15-20577 Document: 00513647291 Page: 2 Date Filed: 08/22/2016No. 15

- 20577

3 sentencing recommendation , even wh ere it has promised to make it

. See United States v. Benchimol , 471 U.S. 453, 455

– 57 (1985). Additionally, the Government did not agree to recommend a three

- point reduction for acceptance of responsibility; instead, it agreed not to oppose Gage’s antic ipated request for such a reduction. A review of the sentencing transcript shows the Government complied with that agreement ; it stated Gage had done enough to receive credit for acceptance of responsibility. In sum, Gage has not met his burden of estab lishing the requisite breach. See , e.g., United States v. Long , 722 F.3d 257 , 2 62 (5th Cir. 201 3 )

. AFFIRMED. Case: 15-20577 Document: 00513647291 Page: 3 Date Filed: 08/22/2016