IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20260 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO HERNANDEZ, also known as Marachi,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-35-1 --------------------

October 20, 1999

Before JONES, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Defendant-appellant, Mario Hernandez, appeals his conviction

and sentence on drug charges. Finding no error, we affirm.

Hernandez pleaded guilty to one count of conspiracy to

possess with intent to distribute heroin. He cooperated

substantially with the Government and, in return, the Government

recommended a downward departure pursuant to U.S.S.G. § 5K1.1.

Herandez received a sentence of 188 months, a significant

reduction from the guideline minimum of 360 months.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20260 -2-

Hernandez now contends that he believed that the Government

agreed to a sentence of 120 months and that the district court

was aware of this belief. Therefore, he argues, the district

court should have allowed him to withdraw his guilty plea or

should have held an evidentiary hearing on whether an agreement

existed.

Hernandez failed to file a motion to withdraw pursuant to

FED. R. CRIM. P. 32. Thus, he has forfeited any objection and his

claims are subject only to plain error review. See United States

v. Palomo,

(5th Cir. 1993). A review of the

record demonstrates that the district court committed no error,

much less plain error.

At his rearraignment, Hernandez repeatedly informed the

court that he understood that any recommendation by the

Government was just that, a recommendation, and was not binding

in any fashion upon the court. Hernandez’ own sentencing

memorandum stated that the Government agreed to recommend a

sentence of 120 months. Further, when his counsel stated at

sentencing that there was an agreement of 120 months, the

district court promptly stated that the Government could not

agree to a sentence and that the court would decide the sentence.

Hernandez’ counsel unequivocally agreed with the district court

and stated that there was no reason that sentence should not be

imposed. Thus, Hernandez’ own statements to the court, as well

as the statements of his counsel, belie his current claims that

he believed there to be a binding agreement for a 120-month

sentence. No. 98-20260 -3-

Accordingly, the district court committed no error in either

failing to vacate Hernandez’ plea sua sponte or in failing to

hold an evidentiary hearing on the existence of an agreement for

a prison term of 120 months. For the foregoing reasons, we

AFFIRM the judgment of the district court.

AFFIRMED.