United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 16, 2005
Charles R. Fulbruge III
Clerk
No. 05-40477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO MACIAS-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(7:04-CR-937-ALL)
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Before JONES, WIENER, and DeMOSS, Circuit Judges
PER CURIAM:*
Having pleaded guilty pursuant to a plea agreement, Defendant-
Appellant Antonio Macias-Rodriguez appeals his sentence for being
illegally present in the United States after having been deported,
in violation of 8 U.S.C. § 1326(a) and (b). Macias-Rodriguez
argues that the government breached the plea agreement by stating
that its promise to recommend a two-level downward departure from
the federal sentencing guidelines pursuant to U.S.S.G. § 5K3.1 was
“unfortunately” included in the plea agreement and by advising 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this opinion should not be published and is not precedent except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 that it mistakenly recommended that Macias-Rodriguez
receive the departure. The government explains that, at the time
of the plea agreement, it did not realize that Macias-Rodriguez had
a prior conviction for violating 8 U.S.C. § 1326.
As Macias-Rodriguez did not object at sentencing to the
government’s alleged breach of the plea agreement, we review his
argument for plain error. See United States v. Reeves, 255 F.3d
208, 210 n.2 (5th Cir. 2001). We perceive no such error. The
district court was aware that the government had recommended a
departure pursuant to U.S.S.G. § 5K3.1, yet the court made it clear
that it had no intention of granting such a departure under any
circumstances. Reeves, 255 F.3d at 210-11 & n.3; United States v.
Calverley, 37 F.3d 160, 164 (5th Cir. 1994) (en banc). Macias-
Rodriguez’s conviction and sentence are therefore
AFFIRMED.