                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          OCTOBER 23, 2006
                             No. 05-14595                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 04-60311-CR-KAM

UNITED STATES OF AMERICA,


                                                   Plaintiff-Appellee,

                                  versus

MIRYAN GARCIA,
a.k.a. Migi,


                                                   Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (October 23, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:
      Miryan Garcia appeals her 30-month sentence for conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h). On appeal, Garcia argues

that the district court erred by concluding that the government did not breach the

plea agreement by failing to file a U.S.S.G. § 5K1.1 motion. After careful review,

we affirm.

      “Whether the government has breached a plea agreement is a question of law

that we review de novo.” United States v. Mahique, 150 F.3d 1330, 1332 (11th

Cir. 1998). We also review de novo whether the government can be compelled to

make a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993) (reviewing the government’s refusal to file a U.S.S.G.

§ 5K1.1 motion).

      The Sentencing Guidelines provide that “[u]pon motion of the government

stating that the defendant has provided substantial assistance in the investigation or

prosecution of another person who has committed an offense, the court may depart

from the guidelines.” U.S.S.G. § 5K1.1. “[T]he decision to file a § 5K1.1 motion

for downward departure from the Sentencing Guidelines . . . lies within the sound

discretion of the Government.” United States v. Alvarez, 115 F.3d 839, 841 (11th

Cir. 1997).   The Supreme Court has made clear that “ § 5K1.1 . . . gives the

Government a power, not a duty, to file a motion when a defendant has



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substantially assisted.” Wade v. United States, 504 U.S. 181, 185 (1992). Of

course, the prosecutor’s discretion when exercising that power is subject to

constitutional limitations. United States v. Forney, 9 F.3d 1492, 1501 (11th Cir.

1993).     While we have “authority to review a prosecutor’s refusal to file a

substantial-assistance motion and to grant a remedy if they find that the refusal was

based on an unconstitutional motive,” such as the defendant’s race or religion, we

will not review the government’s decision to file, or not to file, a substantial-

assistance motion in the absence of an unconstitutional motive. Wade, 504 U.S. at

185-86. Put another way, our review is generally appropriate only when “there is

an allegation and a substantial showing that the prosecution refused to file a

substantial assistance motion     because of a constitutionally impermissible

motivation.” Forney, 9 F.3d at 1502.

         Here, by the plea agreement’s own terms, the government reserved the

unfettered right to evaluate the nature and extent of Garcia’s cooperation, and to

decide whether Garcia’s cooperation warranted the filing of a § 5K1.1 motion.

Garcia agreed “that nothing in the agreement may be construed to require the

government to file such a motion” and “that the U.S. Attorney’s Office for the

Southern District of Florida’s assessment of the nature, value, truthfulness,

completeness, and accuracy of the defendant’s cooperation shall be binding on the



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defendant.”   Garcia makes neither an allegation nor a substantial showing of a

constitutionally impermissible motivation, taking issue only with the government’s

assessment of her assistance. On this record, particularly in light of the plain terms

of the plea agreement, the government’s decision not to file a substantial-assistance

motion was entirely permissible and did not amount to a breach of the plea

agreement.

      AFFIRMED.




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