United States v. Howe

89 F. App'x 464

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 15, 2004
• Docket: 03-41064
• Status: Unpublished

Opinion

PER CURIAM. *

Paul K. Howe appeals his conviction for being a felon in possession of a firearm. He argues that the Government breached the plea agreement when it (1) filed a brief informing the district court that it could depart upward pursuant to U.S.S.G. § 4A1.2, (2) produced witnesses as to his alleged criminal conduct not resulting in a conviction, and (3) examined those witnesses so as to support the presentence report’s recommendation of an upward departure.

We hold that the Government’s conduct was not violative of its promise to recommend that Howe be sentenced at the lowest end of the applicable guideline range. The district court was not bound by that recommendation, see Fed. R.Ceim. P. 11(c)(1)(B) (2002), and in filing a legal brief and in complying with the court’s order to present sentencing witnesses, the Government was fulfilling its duty to insure that the sentencing court had complete and accurate information concerning the defendant to enable the imposition of an appropriate sentence. See United States v. Block, 660 F.2d 1086, 1091 (5th Cir.1981).

The Government consistently recommended that Defendant be sentenced at the lower end of the guidelines. Consequently, the Government fulfilled its commitment to Defendant and did not breach the plea agreement.

Howe has not borne his burden of establishing a breach of the plea agreement, and, therefore, his conviction is affirmed. See United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir.1994).

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.