United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 11, 2005
Charles R. Fulbruge III
Clerk
No. 04-20811
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONOVAN SEGISMOND HEWITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-170-ALL
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Before JOLLY, JONES and OWEN, Circuit Judges.
PER CURIAM:*
Donovan Segismond Hewitt appeals the sentence imposed
following his guilty plea conviction for illegal reentry
following deportation. Hewitt was sentenced to a term of
imprisonment of 76 months, to be followed by a three-year term of
supervised release.
Hewitt argues that he is entitled to have his sentence
vacated and to be resentenced because the Government breached its
oral plea agreement by opposing his motion for a downward
*
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this opinion should not be published and is not precedent except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. 04-20811
-2-
departure. He contends that the prosecutor who was present at
his rearraignment stated that the Government would not oppose
such a motion. The Government concedes that the plea agreement
was unintentionally breached and does not oppose a remand for
resentencing.
Where, as here, there was no objection to the breach of the
plea agreement, the issue is reviewed for plain error. United
States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003). When
reviewing for plain error, this court will consider if there was
an error, the error was clear and obvious, and it affected a
substantial right. United States v. Olano, 507 U.S. 725, 732-34
(1993). Further, because review of a plain error is permissive,
rather than mandatory, this court will exercise its discretion to
correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
732 (internal quotation marks, alteration, and citations
omitted).
“In determining whether the terms of the plea bargain have
been violated, [this] court must determine whether the
government’s conduct is consistent with the parties’ reasonable
understanding of the agreement.” United States v. Gonzales,
309 F.3d 882, 886 (5th Cir. 2002)(citation omitted). The
Government breached the plea agreement in this case by opposing
the motion for a downward departure despite the initial
prosecutor’s acquiescence to defense counsel’s oral and written
No. 04-20811
-3-
statements that the Government had agreed not to oppose the
motion. Id. This error was both clear and obvious and the
Government’s failure to fulfill promises made in the plea
agreement affected the substantial rights of Hewitt and the
fairness, integrity, and public reputation of judicial
proceedings. See Olano, 507 U.S. at 732-34; see United States v.
Goldfaden, 959 F.2d 1324, 1327-29 (5th Cir. 1992). Hewitt’s
sentence is VACATED and the case is REMANDED to the district
court for resentencing.
Hewitt’s argument that 8 U.S.C. § 1326(b) is
unconstitutional on its face and as applied in his case in light
of Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000) is without
merit. Hewitt acknowledges that Almendarez-Torres v. United
States, 523 U.S. 224 (1998) forecloses his argument but wishes to
preserve it for further review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Mancia-Perez, 331 F.3d 464,
470 (5th Cir.), cert. denied, 540 U.S. 935 (2003). This court
must follow the precedent set in Almendarez-Torres “unless and
until the Supreme Court itself determines to overrule it.”
Mancia-Perez, 331 F.3d at 470 (internal quotation and citation
omitted). Therefore, this court is bound by Almendarez-Torres,
and this argument must fail. See Mancia-Perez, 331 F.3d at 470.
SENTENCE VACATED; REMANDED FOR RESENTENCING.