USA v. Paulino Aguilera-Sandoval, No. 12-41280 (5th Cir. 2013)

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Case: 12-41280 Document: 00512338167 Page: 1 Date Filed: 08/12/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 12, 2013 No. 12-41280 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. PAULINO AGUILERA-SANDOVAL, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:09-CR-23-14 Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM:* Paulino Aguilera-Sandoval appeals his 262-month sentence as a career offender under United States Sentencing Guidelines ยง 4B1.1(a). AguileraSandoval pleaded guilty to conspiracy to possess with intent to distribute cocaine. He contends that the district court erred at his resentencing by failing to order specific performance of the plea agreement, by modifying the plea agreement through the court s refusal to apply the agreed-upon base offense * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 12-41280 Document: 00512338167 Page: 2 Date Filed: 08/12/2013 No. 12-41280 level of 32, and by imposing an unreasonable sentence in light of the Government s alleged breach of the plea agreement. Each of the issues rests on the premise that the parties stipulated base offense level of 32 was an enforceable element of the plea agreement that was violated when the district court applied the career offender guideline. We review an alleged breach of a plea agreement de novo. United States v. LozaGracia, 670 F.3d 639, 642 (5th Cir. 2012). According to the unambiguous wording of the agreement, the parties stipulated base offense level was not binding on the district court. See LozaGracia, 670 F.3d at 640-43. Aguilera-Sandoval received specific performance of the agreement at his resentencing when the Government stood by the plea agreement and did not advocate for the career offender enhancement. See id. at 644. The judgment of the district court is AFFIRMED. The Government s motion to dismiss the appeal is DENIED. See United States v. Roberts, 624 F.3d 241, 244 (5th Cir. 2010). Its alternative motion for an extension of time to file an appellate brief is DENIED as unnecessary. 2