                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                                                          F I L E D
                   IN THE UNITED STATES COURT OF APPEALS                    May 22, 2003

                            FOR THE FIFTH CIRCUIT                     Charles R. Fulbruge III
                                                                              Clerk


                                  No. 02-20753
                                Summary Calendar



                          UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                      versus

     RICARDO RIOJAS, also known as Ricardo Riojas-Sandoval,

                                                          Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                  for the Southern District of Texas
                        USDC No. H-95-CR-142-2
                         --------------------

Before JONES, DUHÉ, and CLEMENT, Circuit Judges.

PER CURIAM:1

     Ricardo    Riojas     (Riojas)    pleaded      guilty    to   conspiring      to

launder money in violation of 18 U.S.C. §§ 1956(g) and (h) and

engaging in a continuing criminal enterprise in violation of 21

U.S.C.   §   848    and   was    sentenced     to    a   total     term   of    life

imprisonment. He appeals the district court’s denial of his motion

to withdraw his guilty plea.           He asserts that his plea was not

knowing or voluntary because it was based upon his former counsel’s

     1
        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that this opinion should not be published and is not precedent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.
erroneous advice that he was entering a plea that would result in

a   20-year    prison    term,    not    life   imprisonment,     and    that   the

Government was obligated to file a motion pursuant to U.S.S.G.

§ 5K1.1 in exchange for his complete and truthful debriefing.

      Riojas received all the information to which he was entitled

under    due   process    regarding      his    possible    sentences,    and   any

erroneous advice of counsel to the contrary cannot render his plea

involuntary.      See United States v. Brewster, 137 F.3d 853, 858 (5th

Cir. 1998); United States v. Badger, 925 F.2d 101, 104 (5th Cir.

1991).    Moreover, Riojas does not rebut the Government’s assertion

that it did not file a motion for a downward departure on his

sentence under U.S.S.G. § 5K1.1 because he was not truthful during

his debriefings. The Government had the right to exercise complete

discretion whether to file such a motion.                  See United States v.

Garcia-Bonilla, 11 F.3d 45, 47 (5th Cir. 1993).

      In addition, for the first time on appeal, Riojas alleges that

the Government negotiated his plea in bad faith by representing

that it would file a motion for downward departure of Riojas’s

sentence pursuant to U.S.S.G. § 5K1.1, when it did not intend to do

so. However, where, as here, the Government retains its discretion

to file a motion under U.S.S.G. § 5K1.1, absent an unconstitutional

motive, its decision not to file such a motion is not a breach of

the   plea     agreement.        See    id.     Riojas   does    not   allege   any

unconstitutional         motive    on     the    part      of   the    Government.

Consequently, Riojas has not shown plain error with respect to his

                                          2
claim that the Government breached his plea agreement by not filing

a motion under U.S.S.G. § 5K1.1.       See United States v. Reeves, 255

F.3d 208, 210 (5th Cir. 2001).

     Therefore, Riojas has not shown a “fair and just reason” why

he should be allowed to withdraw his plea.        FED. R. CRIM. P. 32(e)

(2002).2   Under the totality of the circumstances, the district

court did not abuse its discretion in denying Riojas’s motion to

withdraw his guilty plea.     See Brewster, 137 F.3d at 857-58.

Accordingly, the judgment of the district court is AFFIRMED.




     2
        FED. R. CRIM. P. 32(e) was amended effective December 1,
2002, and moved to FED. R. CRIM. P. 11(d). However, because the
district court accepted Riojas’s plea and plea agreement before
Riojas moved to withdraw his plea, the new and old versions of
the rule do not differ substantively as applied to this case.
See FED. R. CRIM. P. 32(e) (1994), FED. R. CRIM. P. 11(d)(2)(B)
(2002).

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