[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit


No. 00-1783

                        UNITED STATES,

                          Appellee,

                              v.

                        JOSE A. DIAZ,

                    Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]


                            Before

                     Boudin, Chief Judge,
               Campbell, Senior Circuit Judge,
                  and Lipez, Circuit Judge.



     Paul M. Glickman on brief for appellant.
     Margaret E. Curran, United States Attorney, Gerard B.
Sullivan, Assistant U.S. Attorney, and Joseph C. Wyderko,
Attorney, Criminal Division, U.S. Department of Justice, on
brief for appellee.
      Per Curiam.     Defendant-appellant Jose Diaz (“Diaz”) appeals

his   sentence    after   a     guilty       plea   on    the   ground    that   the

government breached its plea agreement by failing to recommend

that Diaz receive a three level reduction for acceptance of

responsibility under § 3E1.1 of the United States Sentencing

Guidelines (“Guidelines”).           The government counters that it was

not bound by the plea agreement because Diaz violated its terms

when he provided a false statement to Probation Services for

inclusion in the presentence report.

      It is well established that if a defendant fails to fulfill

his promises under a plea agreement, the government is released

from its obligations under it.                   See, e.g., United States v.

Santiago-Gonzalez, 

, 6 (1st Cir. 1995); United States

v. Baladacchino, 

, 179 (1st Cir. 1985).                       The plea

agreement here explicitly stated that it was binding on the

government only if Diaz pleaded guilty to the specified offenses

and   “[d]id   not    engage    in   any     conduct      which   may    constitute

obstruction      of   justice    under       §    3C1.1   of    the   guidelines.”

Obstruction      of   justice    under       §    3C1.1    includes      “providing

materially false information to a probation officer in respect

to a presentence report or other investigation for the court.”

§ 3C1.1 comment. (n. 4(h)).


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    Diaz violated the agreement when he submitted a statement

of responsibility to the probation office in which he stated

that he had not used a “real” gun during the bank robbery.   By

claiming that he had used an air gun during the robbery, Diaz

denied an essential element of at least two of the offenses to

which he pleaded guilty.     In addition to pleading guilty to

conspiracy and armed   robbery charges, Diaz pleaded guilty to

using a “firearm” during and in relation to a crime of violence

under 18 U.S.C. § 924(c) and being a felon in possession of a

“firearm” under 18 U.S.C. § 921(a)(3)(A). Neither a pellet gun

nor a BB gun are firearms within the meaning of the statute or

the Guidelines. 18 U.S.C. § 921(a)(3)(A); U.S.S.G. § 1B1.1

comment. (n.1(e)). The government had extrinsic evidence, as

well as Diaz’s own admission at the plea hearing, that Diaz used

a 9 mm firearm during the bank robbery.

    Diaz   relies on the sentencing court’s decision to not

enhance his sentence for obstruction of justice to bolster his

contention that he did not breach the plea agreement.     Judge

Lagueux’s discretionary decision, however, does not amount to a

finding that Diaz did not obstruct justice within the meaning of

the Guidelines.   To the contrary, the sentencing court found,

beyond a reasonable doubt, that Diaz had brandished a 9 mm

firearm during the bank robbery.


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    Having found no error in the proceedings below, we hereby

affirm the sentence imposed by the district court.   Loc. R.

27(c).

    Affirmed.




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