United States v. Gallegos

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 3, 2006

Charles R. Fulbruge III
Clerk
No. 05-40221
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR HUGO GALLEGOS,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-871-ALL
--------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

Pursuant to a written plea agreement, Victor Hugo Gallegos

(“Gallegos”) pleaded guilty to possession with intent to

distribute a quantity in excess of five kilograms of cocaine. He

was sentenced to 145 months of imprisonment and to a five-year

term of supervised release.

Gallegos argues for the first time on appeal that the

provisions found at 21 U.S.C. § 841(a) and (b) are facially

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

*
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this opinion should not be published and is not precedent except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. 05-40221
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(2000), because the statute’s structure treats drug types and

quantities as sentencing factors. As Gallegos acknowledges, this

argument is foreclosed by United States v. Slaughter, 238 F.3d

580 (5th Cir. 2000).

Gallegos also argues for the first time on appeal that the

district court reversibly erred in ordering him to cooperate in

the collection of a DNA sample as a condition of supervised

release and that this condition should therefore be vacated.

This claim is not yet ripe for review. See United States v.

Riascos-Cuenu, ___ F.3d ___, No. 05-20037, 2005 WL 2660032 at *2

(5th Cir. Oct. 18, 2005).

Finally, Gallegos argues that he is entitled to have his

sentence vacated and to be resentenced because the Government

breached its plea agreement by failing to recommend that he be

sentenced to the statutory minimum sentence of 120 months of

imprisonment. 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). The Government concedes that it breached the plea

agreement by failing to recommend at sentencing that Gallegos be

sentenced to the statutory minimum sentence of 120 months of

imprisonment, and it does not oppose a remand for resentencing.

The Government’s failure to fulfill promises made in the plea

agreement affected the substantial rights of Gallegos and the

fairness, integrity, and public reputation of judicial
 No. 05-40221
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proceedings. See United States v. Olano, 507 U.S. 725, 732-34

(1993); see also United States v. Goldfaden, 959 F.2d 1324, 1327-

29 (5th Cir. 1992). Accordingly, Gallegos’s sentence is VACATED,

and the case is REMANDED to the district court for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.