UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50195
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ALVIN RAY MATHIS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(SA-95-CR-148-1)
March 10, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Under a written plea agreement, Alvin Ray Mathis, Jr.
pleaded guilty to distributing in excess of 50 grams of cocaine
base, in violation of 21 U.S.C. 841(a)(1). The district court
imposed a 115-month term of imprisonment, to be followed by a five-
year term of supervised release. In calculating the sentence, the
*
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this opinion should not be published and is not precedent except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.
district court reduced Mathis’s offense level by two points on the
basis of his acceptance of responsibility. On appeal, Mathis
contends that the government breached the plea agreement by failing
to adhere to its promise that it would recommend to the sentencing
court that he receive a three-point reduction. After a de novo
2
review of both the terms of the agreement and the evidence placed
before the district court, we conclude that the government did not
breach its promise. We affirm.
Although the plea agreement stated that the government would
recommend a three-point reduction, the presentence report
recommended that Mathis receive merely a two-point reduction
because he did not plead guilty until the day of trial. At the
sentencing hearing, Mathis objected to this recommendation. When
the district court inquired as to the government’s response to
Mathis’s objection, the prosecuting attorney stated that the
government was “bound by the plea agreement,” and that it “did not
oppose a three-level downward adjustment.” The probation officer
in attendance then stated that case law supported his
recommendation that Mathis was entitled only to a two-point
reduction. The prosecuting attorney did not respond to this
statement. In the end, the district court concluded that Mathis
was only entitled to a two-point reduction.
Though Mathis undoubtedly preferred the prosecuting attorney
2
See United States v. Price, 95 F.3d 354, 367 (5th Cir.
1996).
2
to argue zealously for a three-point reduction, binding precedent
makes it clear to us that unless the explicit language of the plea
agreement so requires, the government need not endorse the terms of
its plea agreements enthusiastically.3 It cannot be denied that
the government placed its recommendation for a three-point
reduction squarely before the court. The government adhered to the
terms of the plea agreement.
AFFIRMED.
3
United States v. Benchimol, 471 U.S. 453, 455 (1985); United
States v. Cates, 952 F.2d 149, 153 (5th Cir. 1992).
3