United States v. Mathis

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 97-50195
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ALVIN RAY MATHIS, JR.,

Defendant-Appellant.

Appeal from the United States District Court
For the Western District of Texas
(SA-95-CR-148-1)
March 10, 1998

Before WISDOM, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

Under a written plea agreement, Alvin Ray Mathis, Jr.

pleaded guilty to distributing in excess of 50 grams of cocaine

base, in violation of 21 U.S.C. 841(a)(1). The district court

imposed a 115-month term of imprisonment, to be followed by a five-

year term of supervised release. In calculating the sentence, 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this opinion should not be published and is not precedent except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 reduced Mathis’s offense level by two points on the

basis of his acceptance of responsibility. On appeal, Mathis

contends that the government breached the plea agreement by failing

to adhere to its promise that it would recommend to the sentencing

court that he receive a three-point reduction. After a de novo
2
review of both the terms of the agreement and the evidence placed

before the district court, we conclude that the government did not

breach its promise. We affirm.

Although the plea agreement stated that the government would

recommend a three-point reduction, the presentence report

recommended that Mathis receive merely a two-point reduction

because he did not plead guilty until the day of trial. At the

sentencing hearing, Mathis objected to this recommendation. When

the district court inquired as to the government’s response to

Mathis’s objection, the prosecuting attorney stated that the

government was “bound by the plea agreement,” and that it “did not

oppose a three-level downward adjustment.” The probation officer

in attendance then stated that case law supported his

recommendation that Mathis was entitled only to a two-point

reduction. The prosecuting attorney did not respond to this

statement. In the end, the district court concluded that Mathis

was only entitled to a two-point reduction.

Though Mathis undoubtedly preferred the prosecuting attorney

2
See United States v. Price, 95 F.3d 354, 367 (5th Cir.
1996).

2
to argue zealously for a three-point reduction, binding precedent

makes it clear to us that unless the explicit language of the plea

agreement so requires, the government need not endorse the terms of

its plea agreements enthusiastically.3 It cannot be denied that

the government placed its recommendation for a three-point

reduction squarely before the court. The government adhered to the

terms of the plea agreement.

AFFIRMED.

3
United States v. Benchimol, 471 U.S. 453, 455 (1985); United
States v. Cates, 952 F.2d 149, 153 (5th Cir. 1992).