                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-50014
                        Conference Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

THOMAS GIBBS PYLE,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                       USDC No. 7:04-CR-108-1
                        --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Thomas Gibbs Pyle appeals his guilty-plea conviction and

sentence for conspiracy to manufacture and distribute 50 grams or

more of methamphetamine, on some occasions within 1,000 feet of a

school.   As part of his plea agreement, Pyle waived his right to

appeal or collaterally attack his conviction and sentence on any

grounds except ineffective assistance of counsel or prosecutorial

misconduct of a constitutional dimension.     He argues that the

plea agreement should be invalidated because the Government


     *
       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this opinion should not be published and is not precedent except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. 05-50014
                                 -2-

breached the agreement by refusing to move for a downward

departure pursuant to U.S.S.G. § 5K1.1.    He also argues that, in

light of United States v. Booker, 125 S. Ct. 738 (2005), the

district court violated his Sixth Amendment rights.

     Under the terms of the plea agreement, the Government had

the “sole discretion” to determine whether any information Pyle

provided warranted the filing of a motion for downward departure.

In the absence of an unconstitutional motive claim, Pyle’s

contention that the Government breached the plea agreement is

without merit.    See United States v. Price, 95 F.3d 364, 368 (5th

Cir. 1996).

     The record shows that Pyle knowingly and voluntarily waived

his appellate rights, and the appellate waiver is enforceable.

See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).

Pyle’s Booker argument falls outside of the exceptions contained

in the appellate waiver.   Accordingly, Pyle’s appeal is

dismissed.    See United States v. Baymon, 312 F.3d 725, 727 (5th

Cir. 2002).

     APPEAL DISMISSED.
