           Case: 14-11595   Date Filed: 07/21/2015   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-11595
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:11-cr-00629-EAK-MAP-6



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

HENRY A. MORANT,
a.k.a. Buddy,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (July 21, 2015)

Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 14-11595     Date Filed: 07/21/2015    Page: 2 of 4


      Henry Morant appeals his sentence to his minimum statutory sentence of

120 months of imprisonment, imposed after he pleaded guilty to conspiring to

possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(ii), and conspiring to possess with intent to distribute

marijuana, id. § 841(a)(1), (b)(1)(C). Morant argues that the government breached

its plea agreement by failing to move for a downward departure based on his

substantial assistance, see United States Sentencing Guidelines Manual § 5K1.1

(Nov. 2012), and that the district court should have struck the provision in which

Morant waived his right to appeal the determination regarding his substantial

assistance. Morant also challenges the denial of his motion to declare

unconstitutional section 5K1.1 and section 3553(e) of Title 18. We affirm.

      We review de novo whether the United States breached the plea agreement.

United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). “We review a district

court’s conclusions as to the constitutionality of a challenged statute de novo.”

United States v. Eckhardt, 466 F.3d 938, 943 (11th Cir. 2006).

      The government did not breach its agreement with Morant. The plea

agreement provided that, “[i]f [Morant’s] cooperation is completed prior to

sentencing, the government agrees to consider whether such cooperation qualifies

as ‘substantial assistance’ in accordance with the policy of the United States

Attorney for the Middle District of Florida.” (Emphasis added.) Later, during his


                                           2
              Case: 14-11595     Date Filed: 07/21/2015   Page: 3 of 4


change of plea hearing, Morant twice stated that he understood that the plea

agreement did not obligate the government to move for a reduction of sentence.

That determination is shielded from judicial review unless Morant produces

substantial evidence that the government “refused to file a substantial assistance

motion because of a constitutionally impermissible motivation, such as race or

religion.” Forney, 9 F.3d at 1502. The government complied with its agreement to

consider Morant’s cooperation and refused to file a motion because Morant was

arrested for kidnapping and was in possession of a firearm while on pretrial release

and while completing a pretrial diversionary program for another kidnapping

offense. Because Morant failed to provide any evidence that the government acted

with an unconstitutional motive, its discretionary determination is insulated from

judicial scrutiny. See United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000).

Morant argues that the district court should have struck the appeal waiver, but we

need not decide that issue because the waiver did not bar us from reviewing

whether the government breached its plea agreement.

      The district court did not err when it denied Morant’s motion to declare

unconstitutional sections 5K1.1 and 3553(e). Morant argues that these provisions

usurp the power of the judiciary and violate his right to due process, but we

rejected those identical arguments in United States v. Jones, 933 F.2d 1541, 1548

(11th Cir. 1991), and United States v. Hernandez, 921 F.2d 1569, 1584 (11th Cir.


                                          3
              Case: 14-11595     Date Filed: 07/21/2015   Page: 4 of 4


1991). Morant challenges those decisions, but “a prior panel’s holding is binding

on all subsequent panels unless and until it is overruled or undermined to the point

of abrogation by the Supreme Court or by this court sitting en banc,” United States

v. Sneed, 600 F.3d 1326, 1332 (11th Cir. 2010). Morant also argues that sections

5K1.1 and 3553(e) “violate[] the Constitutional right to access to the courts” and

deny him a remedy, but Morant was able to move to enforce any promise that was

“part of the inducement or consideration” for the plea agreement, Santobello v.

New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971). Ultimately, Morant was

not entitled to relief because he failed to prove that the government breached its

agreement. See Nealy, 232 F.3d at 831. In any event, the district court decided it

was “appropriate in this situation” to vary downward from Morant’s advisory

guideline sentence of 188 to 235 months “under 18 USC 3553(a), 1 through 7,”

and sentenced him “to the minimum mandatory . . . [of] 120 months” of

imprisonment.

      We AFFIRM Morant’s sentence.




                                          4
