United States v. Shepard , 88 F. App'x 44 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-40703
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID L. SHEPARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-107-1
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Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
David L. Shepard appeals his sentence following a guilty
plea to simple assault. See 18 U.S.C. § 113(a)(5). Shepard
argues that the district court’s imposition of the $1000 fine
violated his oral plea agreement for a “specific sentence.” See
FED. R. CRIM. P. 11(c)(1)(C). Because Shepard did not object in
the district court to the imposition of a fine on the ground that
it violated his plea agreement, we review for “plain error” only.
See United States v. Green, 324 F.3d 375, 381 (5th Cir.), cert.
*
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that this opinion should not be published and is not precedent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. 03-40703
-2-
denied, 124 S. Ct. 152 (2003); see also United States v. Rhodes,
253 F.3d 800, 804 (5th Cir. 2001). Under the plain error
standard, the defendant bears the burden of showing that
(1) there is an error, (2) the error is plain, and (3) the error
affects substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993).
A plea agreement arising under FED. R. CRIM. P. 11(c)(1)(C),
“binds the court once the court accepts the plea agreement.”
FED. R. CRIM. P. 11(c)(1)(C); McClure v. Ashcroft, 335 F.3d 404,
413 (5th Cir. 2003); Rhodes, 253 F.3d at 804. “‘Plea bargain
agreements are contractual in nature, and are to be construed
accordingly.’” Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir.
1996)(citation omitted). Although the parties reached a plea
agreement as to a specific term of imprisonment, namely three
months, the record does not suggest that the plea agreement
involved any understanding regarding a fine. Thus, the district
court’s acceptance of the plea agreement did not preclude the
imposition of a fine. Shepard has not demonstrated error, plain
or otherwise.
AFFIRMED.