IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41299 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GILBERTO JUAN SOLIS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-512-1 - - - - - - - - - - October 18, 2000

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Gilberto Juan Solis appeals his conviction following a

guilty plea for conspiracy to possess with intent to distribute

over 100 kilograms of marijuana. Solis argues that the

Government breached the terms of the plea agreement because it

orally recommended a sentence of 60 months but then was silent

when the presentence report (PSR) recommended a sentencing range

between 84 and 105 months. Solis also complains that the

Government opposed his motion for a downward departure for being

a minor or minimal participant.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41299 -2-

Solis did not object to the Government’s actions at

sentencing; therefore, they are reviewed for plain error. See

United States v. Wilder,

(5th Cir. 1994);

United States v. Goldfaden,

(5th Cir. 1992).

The Government did not breach the terms of the plea agreement.

It recommended a three-level reduction for acceptance of

responsibility and further recommended sentencing at an offense

level of 23. The sentencing court followed these

recommendations. The Government was not obliged by the terms of

the agreement to object to the application of the sentencing

range recommended in the PSR. See United States v. Cantu,

(5th Cir. 1999). Nor was the Government precluded

from objecting to a downward adjustment in the offense level that

would have put the offense level below 23.

Accordingly, the

district court’s judgment is AFFIRMED.