IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20874

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES J. KLUTTS,

Defendant-Appellant.

Appeal from the United States District Court For the Southern District of Texas (00-CR-624)

November 25, 2002

Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.

PER CURIAM:*

Charles J. Klutts appeals the sentence imposed following his

guilty plea to possession of child pornography. As his sole ground

for appeal, Klutts contends that the Government breached an oral

plea agreement not to oppose a downward departure from the

sentencing guidelines. Klutts had argued at sentencing for a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. downward departure that would have substituted community

confinement for incarceration. The Government opposed a sentence

that did not include incarceration. The district court sentenced

Klutts to 27 months’ incarceration, the lowest end of the

applicable guideline range.

Under the plain error standard, Klutts has not met his burden

of showing that, by opposing a sentence that did not include

incarceration, the Government breached an agreement that was part

of the inducement or consideration for Klutts’ guilty plea.1 A

sentence that did not include incarceration was not contemplated by

the parties when they entered the plea agreement, and therefore was

not an inducement to the defendant pleading guilty. Because the

defendant was not eligible for the downward departure in any event,

he suffered no harm.

Moreover, there was no breach of the oral plea agreement

occasioned by the Government’s statement at sentencing that the

Government would not support a downward departure in a child

pornography case but would leave the departure decision to the

district court’s discretion. A lack of support is not inconsistent

with a promise not to oppose a sentence at the low end of the

sentencing range, the promise on which the defendant relied in

entering a guilty plea.

1 See United States v. Reeves,

(5th Cir. 2001); United States v. Wittie,

(5th Cir. 1994); United States v. Valencia,

(5th Cir. 1993).

2 AFFIRMED.

3