USA v. Bulmaro Martinez, No. 14-40164 (5th Cir. 2015)
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Case: 14-40164 Document: 00512992030 Page: 1 Date Filed: 04/02/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-40164 Summary Calendar United States Court of Appeals Fifth Circuit FILED April 2, 2015 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. BULMARO PADRON MARTINEZ, also known as Chapparo, also known as Gumaro, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-842-6 Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit Judges. PER CURIAM: * Bulmaro Padron Martinez pleaded guilty pursuant to a written plea agreement to one count of conspiring to transport illegal aliens for profit in violation of 18 U.S.C. § 1324. The district court sentenced him to 51 months 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-40164 Document: 00512992030 Page: 2 Date Filed: 04/02/2015 No. 14-40164 in prison, which was at the top of his advisory guidelines range. He now appeals his sentence. We review for plain error Martinez’s claim that the Government breached the plea agreement by violating its promise not to oppose his request to be held accountable for not more than 24 aliens. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show plain error, Martinez must show a forfeited error that is clear or obvious and that affects his substantial rights. See id. If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. Although the plea agreement included a waiver of Martinez’s right to appeal his sentence, an appeal waiver is unenforceable if the Government breaches a plea agreement. United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). The Government did not breach the plea agreement in this case. In fact, the Government specifically stated that it was honoring the agreement by advocating for the 24-alien count. Furthermore, the Government’s statement that the district court was not bound by the promise in the plea agreement did not constitute a breach of the agreement. See United States v. Benchimol, 471 U.S. 453, 455-56 (1985); FED. R. CRIM. P. 11(b)(1)(M). Because the Government did not breach the plea agreement, the valid appeal waiver bars this appeal. See United States v. Purser, 747 F.3d 284, 294-95 (5th Cir.), cert. denied, 135 S. Ct. 403 (2014). Accordingly, the appeal is DISMISSED. 2
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