IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2008
No. 07-40267
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ABEL C LUCIO
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-963-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Abel C. Lucio appeals his 95-month sentence following his guilty-plea
conviction for two counts of distribution of material involving sexual exploitation
of minors. Lucio argues that the Government breached the plea agreement by
recommending a sentence within the applicable guidelines range and then
arguing in support of a sentence above that range.
*
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should not be published and is not precedent except under the limited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. 07-40267
Because Lucio did not raise this argument in the district court, review is
for plain error. See United States v. Brown, 328 F.3d 787, 790 (5th Cir. 2003).
Lucio has not borne his burden of establishing that there was a breach of the
plea agreement. See United States v. Cantu, 185 F.3d 298, 304-05 (5th Cir.
1999). Assuming that there was a breach of the plea agreement, however, Lucio
has not demonstrated that any such error affected his substantial rights. See
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). It is evident from
the two sentencing transcripts in this matter that the district court was intent
on sentencing Lucio above the applicable guideline range despite the
Government’s recommendation that he be sentenced within the applicable
guideline range. There is no indication that the district court’s decision to
sentence Lucio above the guideline range was influenced in any way by the
prosecutor’s comments. Because any assumed error was not prejudicial, it did
not affect Lucio’s substantial rights. See United States v. Puckett, 505 F.3d 377,
384 (5th Cir. 2007).
The judgment of the district court is AFFIRMED.
2