                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  June 20, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-50196
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

DAVID BRIAN BROWN,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 7:04-CR-171-ALL
                       --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     David Brian Brown appeals his guilty-plea conviction and

sentence for attempting to manufacture methamphetamine within

1000 feet of a school.    As part of his plea agreement, Brown

signed a waiver provision wherein he specifically consented to be

sentenced under the applicable United States Sentencing

Guidelines.    The Government seeks enforcement of that waiver.

     “[A] defendant who agreed ‘to be sentenced pursuant to the

applicable Sentencing Guidelines’ is not precluded from raising


     *
       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this opinion should not be published and is not precedent except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. 05-50196
                                -2-

on appeal an alleged Fanfan error.”   United States v.

Reyes-Celestino, 443 F.3d 451, 453 (5th Cir. 2006).     Accordingly,

the waiver provision does not bar Brown’s appeal.

     For the first time on appeal, Brown argues that the district

court erred when it sentenced him pursuant to the mandatory

Sentencing Guidelines held unconstitutional in United States v.

Booker, 543 U.S. 220 (2005).   Application of the Sentencing

Guidelines in their mandatory form constitutes error that is

plain.   United States v. Valenzuela-Quevedo, 407 F.3d 728, 733

(5th Cir.), cert. denied, 126 S. Ct. 267 (2005).    However,

nothing in the record indicates that the district court would

have imposed a different sentence if it had known that it was not

bound by the Sentencing Guidelines.   Accordingly, the district

court’s error did not affect Brown’s substantial rights.       See id.

at 733-34.   Brown, therefore, has not established reversible

plain error.

     Brown also argues that the plea agreement should be

invalidated because the Government breached the agreement by

refusing to move for a downward departure pursuant to

U.S.S.G. § 5K1.1.   Under the terms of the plea agreement, the

Government had the “sole and exclusive” authority to determine

whether Brown provided substantial assistance warranting the

filing of a motion for downward departure.   Accordingly, Brown’s

contention that the Government breached the plea agreement by
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                               -3-

refusing to exercise its discretion is without merit.   See United

States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996).

     AFFIRMED.
