Summary Calendar UNITED STATES OF AMERICA v. Anthony Antunez

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20778
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY ANTUNEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:06-CR-92-2
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Anthony Antunez appeals his sentence for one count of conspiracy to pos-
sess with intent to distribute methamphetamine and five counts of possession
United States Court of Appeals
Fifth Circuit
F I L E D
March 13, 2008
Charles R. Fulbruge III
Clerk

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No. 06-20778
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with intent to distribute methamphetamine. He argues that the government
breached the plea agreement by opposing his request for an acceptance of re-
sponsibility adjustment pursuant to U.S.S.G. § 3E1.1.
This court recently clarified the standard of review governing whether an
alleged breach of a plea agreement by the government warrants relief. See Unit-
ed States v. Puckett, 505 F.3d 377, 383-87 (5th Cir. 2007). Because Antunez
failed to object to the government’s statements in the district court, we review
for plain error. See id. at 384. Under that standard of review, Antunez must
show there is (1) an error; (2) that is clear or plain; (3) that affects his substan-
tial rights. See id. He bears the burden of persuasion. See id. Where the three
elements of plain error are present, this court will exercise its discretion to pro-
vide relief only where the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks and citation
omitted).
The government argues that it only agreed not to oppose the adjustment
in the event that Antunez accepted responsibility as contemplated by the sen-
tencing guidelines. We reject that interpretation, because it would prevent the
government from opposing the adjustment only where it believes it lacks a prin-
cipled basis for so doing, thereby rendering the relevant provision of the plea
agreement meaningless. See Cedyco Corp. v. PetroQuest Energy LLC, 497 F.3d
485, 490 (5th Cir. 2007) (rejecting interpretation that rendered contractual pro-
vision meaningless); Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir. 1994) (con-
struing plea agreement according to contractual principles). Because the govern-
ment’s arguments at sentencing were inconsistent with the parties’ reasonable
understanding of the plea agreement, the government breached the agreement.
See United States v. Cerverizzo, 74 F.3d 629, 633 (5th Cir. 1996). Antunez has
shown error that is clear. See Puckett, 505 F.3d at 384.
To show that his substantial rights were affected by the error, Antunez
must show that the error “affected the outcome of the district court proceedings.”

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No. 06-20778
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United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (internal quotation
marks and citation omitted). “[I]f the effect of the error is uncertain so that we
do not know which, if either, side it helped the defendant loses.” Id. (internal
quotation marks and citation omitted). The probation officer, in the presentence
report and the responses to Antunez’s objections, recommended that Antunez be
denied an acceptance of responsibility adjustment because he had tested positive
for methamphetamine use while on bond. Because it is uncertain from the rec-
ord whether the government’s arguments affected the district court’s decision to
adopt the presentence report, Antunez has failed to satisfy the third element of
the plain error test. See Puckett, 505 F.3d at 384; Mares, 402 F.3d at 521.
AFFIRMED.

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