United States v. Alvarez-Benavidez

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 3, 2007

Charles R. Fulbruge III
Clerk
No. 06-20219
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN PEDRO ALVAREZ-BENAVIDEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
(4:04-CR-346-2)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Juan Pedro Alvarez-Benavidez appeals his sentence following

his guilty-plea conviction for conspiracy to possess in excess of

five kilograms of cocaine with intent to distribute. He contends

the Government breached his plea agreement by failing to recommend

an average-participant role in the offense, as it had promised in

the agreement. Because Alvarez-Benavidez did not raise this issue

in the district court, our review is only for plain error. See

United States v. Munoz, 408 F.3d 222, 226 (5th Cir. 2005).

*
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this opinion should not be published and is not precedent except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.
 The Government concedes it breached the plea agreement;

contrary to its promise, it urged the district court to adopt the

Presentence Report’s upward-adjustment recommendation for an

organizer-of-the-offense role. Because the Government breached the

agreement, the sentence is vacated and this case is remanded for

resentencing before a different district court judge. See United

States v. Saling, 205 F.3d 764, 768 (5th Cir. 2000).

Alvarez-Benavidez also claims the district court did not

provide him an opportunity for allocution at the sentencing

hearing. Because he will be resentenced, this issue is moot. See

United States v. Luciano-Rodriguez, 442 F.3d 320, 323 (5th Cir.),

cert. denied, 127 S. Ct. 747 (2006).

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING

2