Case: 18-50674      Document: 00514938623         Page: 1    Date Filed: 05/01/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 18-50674
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                        May 1, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

FABIAN DELGADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-51-2


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Fabian Delgado appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with intent to distribute 50 grams or more
of actual methamphetamine. He contends that the appeal waiver provision in
his plea agreement is invalid for various reasons and, therefore, he may argue
on appeal that the district court erred in denying him a reduction pursuant to
U.S.S.G. § 3E1.1 for acceptance of responsibility.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-50674

      Delgado contends that the appeal waiver should not be enforced because
he received no consideration from the Government in return for pleading guilty
under the plea agreement. We review this unpreserved claim for plain error.
See Puckett v. United States, 

, 135 (2009).
      Although we are guided by general principles of contract law in
construing plea agreements, United States v. Story, 

, 231 (5th Cir.
2006), we have never expressly held that consideration is required to support
a valid plea agreement, see United States v. Smallwood, 

, 1239-
40 (5th Cir. 1991). Thus, even if Delgado’s plea agreement lacked a bargained-
for quid pro quo, he has not shown that the district court plainly erred in
accepting the plea agreement. See 

; 

.
      Delgado further maintains that the appeal waiver is invalid because the
Government breached the plea agreement by making arguments and offering
evidence against a reduction for acceptance of responsibility. This claim, which
we also review for plain error, see 

; United States v.
Cerverizzo, 

, 631 (5th Cir. 1996), is misguided.
      In the plea agreement, the Government promised to move for a one-level
reduction under § 3E1.1(b) if the district court found that Delgado qualified for
the two-level reduction set forth in § 3E1.1(a). However, the Government made
no promises as to the reduction provided in § 3E1.1(a), including, inter alia, to
recommend it or not oppose it. Accordingly, the plea agreement did not restrict
the arguments or evidence that the Government could present as to whether
Delgado accepted responsibility under § 3E1.1(a). See United States v. Cortez,

, 503 (5th Cir. 2005). Further, because the district court concluded
that Delgado was ineligible for a two-level reduction under § 3E1.1(a) because
he engaged in criminal activity while he was detained prior to his sentencing,
the condition triggering the Government’s obligation to move for an additional

                                       2
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                                 No. 18-50674

one-level reduction under § 3E1.1(b) was not fulfilled. Thus, the Government
did not breach the plea agreement. See United States v. Cluff, 

,
299-300 (5th Cir. 2017).
      Finally, Delgado argues that the appeal waiver is unenforceable because
the district court did not comply with the plea agreement. He asserts that the
plea agreement required the district court to grant a three-level reduction for
acceptance of responsibility, and the refusal of the district court to grant that
reduction was tantamount to a rejection of the plea agreement. We review the
newly raised claim for plain error only. See 

.
      The refusal of the district court to grant a reduction under § 3E1.1 was
not incompatible with the terms of the agreement. The plea agreement – which
was entered into under Federal Rule of Criminal Procedure 11(c)(1)(A) – had
no provision that bound the district court to grant a reduction under § 3E1.1.
Instead, the plea agreement set forth that the district court had to determine
whether Delgado accepted responsibility under § 3E1.1(a), and, if it did so, the
Government had to request an additional one-level reduction under § 3E1.1(b).
Thus, the plea agreement allowed the district court to deny a reduction under
§ 3E1.1(a), and, in turn, excuse the Government from its promise. Accordingly,
Delgado has not established that his failure to receive a reduction pursuant to
§ 3E1.1 constituted a rejection of the plea agreement. See United States v. Self,

, 247 (5th Cir. 2010).
      Delgado has not shown that the appeal waiver should not be enforced.
Because he does not argue that the waiver otherwise is invalid, this court may
not review any claims that are barred by the waiver. See United States v. Bond,

, 544 (5th Cir. 2005). Therefore, we do not consider his challenge
to the denial of a reduction under § 3E1.1. See