IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40022 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GENARO ESPINOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-494-3 -------------------- November 1, 2000

Before DAVIS, JONES and DEMOSS, Circuit Judges.

PER CURIAM:*

In this direct criminal appeal, Genaro Espinoza argues that

the Government breached their plea agreement by failing to make

an affirmative recommendation at sentencing that his offense

level be adjusted for his minor role in the offense. Espinoza

acknowledges that he failed to raise this issue in the district

court and, thus, the alleged error is subject to review for plain

error.

The record reflects that the district court was aware that

the plea agreement provided that the Government would recommend

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40022 -2-

that Espinoza’s offense level be adjusted for his minor-role in

the offense. The Government gave no indication to the district

court that it was opposing a reduction of Espinoza’s offense

level on that basis. However, the record reflects that the

district court made an independent determination that Espinoza

was not entitled to the adjustment based on the nature of his

participation in the offense.

Espinoza has not shown that an affirmative recommendation by

the Government would have had an effect on the district court’s

decision regarding the role adjustment. See United States v.

Hooten,

(5th Cir. 1991). Because Espinoza

has not shown that the Government’s failure to make an

affirmative recommendation affected his substantial rights, the

Government’s conduct was not sufficient to rise to the level of

plain error. See United States v. Calverley,

(5th Cir. 1994)(en banc).

AFFIRMED.