United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 15, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41064
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL K. HOWE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-281
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Before JOLLY, WIENER and PICKERING, Circuit Judges
PER CURIAM:*
Paul K. Howe appeals his conviction for being a felon in
possession of a firearm. He argues that the Government breached
the plea agreement when it (1) filed a brief informing the
district court that it could depart upward pursuant to U.S.S.G.
§ 4A1.2, (2) produced witnesses as to his alleged criminal
conduct not resulting in a conviction, and (3) examined those
*
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that this opinion should not be published and is not precedent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.
No. 03-41064
-2-
witnesses so as to support the presentence report’s
recommendation of an upward departure.
We hold that the Government’s conduct was not violative of
its promise to recommend that Howe be sentenced at the lowest end
of the applicable guideline range. The district court was not
bound by that recommendation, see FED. R. CRIM. P. 11(c)(1)(B)
(2002), and in filing a legal brief and in complying with the
court’s order to present sentencing witnesses, the Government
was fulfilling its duty to insure that the sentencing court had
complete and accurate information concerning the defendant to
enable the imposition of an appropriate sentence. See United
States v. Block, 660 F.2d 1086, 1091 (5th Cir. 1981).
The Government consistently recommended that Defendant be
sentenced at the lower end of the guildelines. Consequently, the
Government fulfilled its commitment to Defendant and did not
breach the plea agreement.
Howe has not borne his burden of establishing a breach of
the plea agreement, and, therefore, his conviction is affirmed.
See United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994).
AFFIRMED.