Case: 13-50954      Document: 00512829170         Page: 1    Date Filed: 11/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 13-50954
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       November 6, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JUAN ALEJANDRO LOMAS-RODRIGUEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:12-CR-1888-2


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Juan Alejandro Lomas-Rodriguez pleaded guilty pursuant to a plea
agreement to a single count of conspiracy to possess with intent to distribute
500 grams or more of a mixture or substance containing methamphetamine.
As part of his plea agreement, he agreed to waive his right to appeal, except
for claims of prosecutorial misconduct or ineffective assistance of counsel. The
Government agreed, in relevant part, to “make known to the sentencing court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50954    Document: 00512829170     Page: 2   Date Filed: 11/06/2014


                                 No. 13-50954

the extent of Defendant’s truthful and substantial cooperation with the
Government, if Defendant should choose to cooperate.”
      On appeal, Lomas-Rodriguez argues that the Government breached the
plea agreement and committed prosecutorial misconduct by failing to inform
the district court at sentencing of the extent of his cooperation.        If the
Government breaches a plea agreement, a waiver of appeal provision is void
and not enforceable. See United States v. Keresztury, 

, 755-57 (5th
Cir. 2002). Lomas-Rodriguez concedes that, because he did not raise this issue
below, review is for plain error. See United States v. Reeves, 

, 210
(5th Cir. 2001).
      We find that no breach of the plea agreement, or prosecutorial
misconduct, occurred. Although the Government made no explicit statement
regarding cooperation at sentencing, the record shows that the district court
was aware of the results of Lomas-Rodriguez’s debriefings through the Pre-
Sentence Report (PSR) and other documents. Cf. 

(finding no breach of plea agreement because Government’s agreement to
recommend a particular sentence was satisfied by the inclusion of the plea
agreement in the PSR).     The district court specifically referenced Lomas-
Rodriguez’s debriefings during sentencing, stated it believed his version of
events, and noted that he had satisfied the requirements to obtain the benefit
of the “safety valve” sentencing provisions found in U.S.S.G. § 5C1.2 and 18
U.S.C. § 3553(f). Because the Government did not breach its obligation to
“make known” to the district court the results of these debriefings, the waiver
of appeal provision is valid and enforceable.
      APPEAL DISMISSED.




                                       2