                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 97-40514
                           Summary Calendar



     UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

             versus


     ISMELDO VENTURA-GUTIERREZ,

                                             Defendant-Appellant.




         Appeals from the United States District Court for the
                       Southern District of Texas
                             (M-95-CV-330)


                         January 23, 1998
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

     Ismeldo     Ventura-Gutierrez,   federal    prisoner   #65009-079,

appeals from the district court’s denial of his motion to vacate,

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

He avers that the government breached the plea agreement by failing

to file a motion for downward departure pursuant to U.S.S.G. §

     *
      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opinion should not be published and is not precedent except under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.
5K1.1 and that his counsel was ineffective in recommending he plead

guilty.    Ventura-Gutierrez also avers, for the first time in his

reply brief, that the district court erred in refusing to hold an

evidentiary hearing.     We have reviewed the record and find no

error.    Accordingly, the judgment is AFFIRMED for essentially the

same reasons adopted by the district court.    See United States v.

Ventura-Gutierrez, No. M-95-CV-330 (S.D. Tex. March 31, 1997).



                                          AFFIRMED1




     1
      Ventura-Gutierrez’s motion for appointment of counsel is
denied.

                                  2
