United States v. Bernal-Adame

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4362

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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)
2
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.