UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4362
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FELIPE DE JESUS BERNAL-ADAME,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00310-BO-1)
Submitted: February 10, 2011 Decided: March 15, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Felipe De Jesus Bernal-Adame appeals from his
convictions and seventy-five month sentence entered pursuant to
his guilty plea to conspiracy to distribute cocaine and
possession of a firearm in furtherance of a drug trafficking
crime. On appeal, Bernal-Adame asserts that the Government
breached his plea agreement by failing to inform the sentencing
court of the full extent of his cooperation with authorities.
We affirm.
Because Bernal-Adame did not claim in the district
court that the Government had breached the plea agreement, we
review for plain error. Puckett v. United States, 129 S. Ct.
1423, 1428 (2009). To prevail on his claim that resentencing is
required, Bernal-Adame must show that an error occurred, the
error was plain, the error affected his substantial rights, and
if not corrected, the error would seriously affect the fairness,
integrity, or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732 (1993).
Here, the Government made no statements at sentencing
regarding Bernal-Adame’s assistance or lack thereof, * although
*
Although the Government asserts that it satisfied its
obligations at sentencing by describing Bernal-Adame’s
debriefing process, the Government is mistaken. In fact, the
Government made no statements whatsoever. The statements
(Continued)
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the plea agreement clearly required that the Government inform
the court of the full extent of Bernal-Adame’s cooperation. As
such, there was error, and it was plain. However, Bernal-Adame
must also show that the error affected his substantial rights
and that the error would seriously affect the fairness of
judicial proceedings. This, he has failed to do. Bernal-Adame
does not state what cooperation he provided, and there is
nothing in the record which suggests that the Government
withheld any positive information. As such, he has failed to
show any non-speculative basis on which to conclude that the
district court would have imposed a lower sentence had the
Government outlined Bernal-Adame’s cooperation. See United
States v. Knight, 606 F.3d 171, 180 (4th Cir. 2010) (explaining
requirement for showing that an error affected substantial
rights). Therefore, Bernal-Adame cannot show that he was
prejudiced or, by extension, that there was plain error.
Accordingly, we affirm Bernal-Adame’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
outlined in the Government’s brief referred to Bernal-Adame’s
co-defendant who was sentenced at the same time.
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