                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4243



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANGEL LUIS RODRIGUEZ, a/k/a Jose M. Gomez,
a/k/a Angel Ayala, a/k/a Hector Reyes,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-92)


Submitted:   September 14, 2005           Decided:   October 11, 2005


Before LUTTIG, WILLIAMS, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Linda George, Hackensack, New Jersey, for Appellant. Jonathan S.
Gasser, Acting United States Attorney, Alston C. Badger, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Angel Luis Rodriguez appeals his guilty plea conviction

and life sentence imposed for conspiracy to distribute ecstasy,

cocaine and marijuana, in violation of 21 U.S.C. § 846 (2000),

possession with intent to distribute ecstasy, and more than 500

grams of cocaine, in violation of 21 U.S.C. § 841 (2000), and one

additional count of possession with intent to distribute cocaine,

in violation of 21 U.S.C. § 841 (2000).

          Rodriguez first contends that the district court erred by

denying   his   motion   to   compel   specific   performance   of   the

Government’s promise to move for a U.S. Sentencing Guidelines

Manual § 5K1.1 departure.      The denial of a motion to compel is

reviewed for abuse of discretion.      See, e.g., Wells v. Liddy, 186

F.3d 505, 518 n.12 (4th Cir. 1999).      A district court may, upon the

government’s motion, reduce the sentence of a defendant who has

provided substantial assistance in aiding another prosecution. See

Rule 35(b); United States Sentencing Guidelines Manual, § 5K1.1.

Courts review plea agreements as contracts.          United States v.

Martin, 25 F.3d 211, 216-17 (4th Cir. 1994).       The party asserting

a breach of a plea agreement has the burden of proving its breach.

United States v. Dixon, 998 F.2d 228, 230 (4th Cir. 1993); United

States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). After

careful review of the record, we conclude that by threatening

several witnesses, Rodriguez violated his plea agreement in several


                                 - 2 -
respects and such material breaches relieved the Government of any

obligation to move for a downward departure.               See 18 U.S.C.

§ 1513(b) (2000); see also United States v. David, 58 F.3d 113,

(4th Cir. 1995).    Accordingly, we find no abuse of discretion.

          Rodriguez next asserts that his sentence was based upon

facts found by a judge, in violation of United States v. Booker,

125 S. Ct. 738 (2005).   In Booker, the Supreme Court held that the

federal sentencing guidelines’ mandatory scheme, which provides for

sentencing enhancements based on facts found by the court, violated

the Sixth Amendment.     After Booker, courts must calculate the

appropriate guideline range, consider the range in conjunction with

other relevant factors under the guidelines and 18 U.S.C. § 3553(a)

(2000), and impose a sentence.        If a court imposes a sentence

outside the guideline range, the district court must state its

reasons for doing so.    United States v. Hughes, 401 F.3d 540, 547

(4th Cir. 2005).

          Because   Rodriguez   did   not   raise   this   claim   in   the

district court, his sentence is reviewed for plain error.          Hughes,

401 F.3d at 547 (citing United States v. Olano, 507 U.S. 725, 731-

32 (1993)). To demonstrate plain error, a defendant must establish

that error occurred, that it was plain, and that it affected his

substantial rights. Olano, 507 U.S. at 731-32; Hughes, 401 F.3d at

547-48. If a defendant establishes these requirements, the court’s

“discretion is appropriately exercised only when failure to do so


                                - 3 -
would    result     in   a   miscarriage     of   justice,   such   as     when   the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotation marks and citation

omitted).

            Although Rodriguez’s offense level was enhanced by facts

that he did not admit to, the enhanced offense level did not affect

the length of his sentence.          In the absence of a downward departure

based upon substantial assistance, the district court was without

the authority to impose any sentence other than mandatory life in

prison.*    United States v. Robinson, 404 F.3d 850, 862 (4th Cir.

2005) (holding that “Booker did nothing to alter the rule that

judges     cannot      depart   below    a    statutorily       provided    minimum

sentence.”).        Accordingly, Rodriguez suffered no Sixth Amendment

violation.        We     therefore   affirm       Rodriguez’s    convictions      and

sentence.     We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                                           AFFIRMED



     *
      Rodriguez had four prior drug trafficking convictions.
Accordingly, under 18 U.S.C. § 841(b)(1)(A) (2000) (dictating
mandatory life sentence if the defendant has two or more prior
felony drug convictions), Rodriguez was subject to a mandatory life
sentence even if his offense level had not been enhanced by judge-
found facts. In light of this circumstance, we need not address
Rodriguez’s claim that he was entitled to a sentence reduction
based on acceptance of responsibility.

                                        - 4 -
