     Case: 16-60607      Document: 00514078656         Page: 1    Date Filed: 07/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-60607                                FILED
                                  Summary Calendar                          July 18, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANN LOUISE FRANZEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:15-CR-55-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Pursuant to a written plea agreement, Ann Louise Franzen pleaded
guilty to conspiring to commit identity theft and theft of government property.
In her plea agreement, the Government agreed to consider filing a motion
pursuant to U.S.S.G. § 5K1.1 if it determined that Franzen had provided
substantial assistance to law enforcement officials and she fully complied with




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-60607     Document: 00514078656       Page: 2   Date Filed: 07/18/2017


                                   No. 16-60607

terms of the plea agreement. In the plea agreement, Franzen generally waived
her right to appeal.
      On appeal, Franzen asserts that the Government breached the plea
agreement because it refused to file a § 5K1.1 motion without considering
whether Franzen had provided substantial assistance and fully complied with
the terms of the plea agreement. Notably, Franzen does not seek to compel the
Government to file a § 5K1.1 motion but merely seeks to have the Government
consider filing a § 5K1.1 motion based on whether she provided substantial
assistance and complied with the plea agreement.
      The Government has filed a motion to dismiss Franzen’s appeal or, in
the alternative, for summary affirmance. The Government seeks to dismiss
Franzen’s appeal as barred by the appeal waiver in her plea agreement.
      “In determining whether the terms of a plea agreement have been
violated, the court must determine whether the [G]overnment’s conduct is
consistent with the defendant’s reasonable understanding of the agreement.”
United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993). The defendant
has the burden of proving the underlying facts establishing a breach of the plea
agreement by a preponderance of the evidence.            United States v. Garcia-
Bonilla, 11 F.3d 45, 46 (5th Cir. 1993). Where, as here, a defendant does not
raise the issue of breach in the district court, our review is limited to plain
error. Puckett v. United States, 556 U.S. 129, 134-43 (2009); United States v.
Barnes, 730 F.3d 456, 457 (5th Cir. 2013). To show plain error, Franzen must
show a forfeited error that is clear or obvious and that affects her substantial
rights. Puckett, 556 U.S. at 135. If she makes such a showing, this court has
the discretion to correct the error but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and citations omitted).



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                                No. 16-60607

      Absent a contrary agreement, the decision whether to file a § 5K1.1
motion is discretionary. Wade v. United States, 504 U.S. 181, 185 (1992). The
Government may, however, bargain away its discretion in a plea agreement.
Garcia-Bonilla, 11 F.3d at 46. However, when the plea agreement expressly
states that the Government retains discretion over the decision, the
Government’s refusal to file the motion is reviewable only for unconstitutional
motive, United States v. Aderholt, 87 F.3d 740, 742 (5th Cir.1996), or on the
ground that the refusal to file the motion was not rationally related to a
legitimate government end, Wade, 504 U.S. at 186.
      The plain language of Franzen’s plea agreement reflects that the
Government explicitly retained the discretion to move for a downward
departure.   As Franzen does not argue that the Government had an
unconstitutional motive or that the Government’s denial was not rationally
related to a legitimate government end, she has not met her burden of proving
that the Government breached the plea agreement by a preponderance of the
evidence, see Garcia-Bonilla, 11 F.3d at 46, and she has not shown that the
Government committed error, much less plain error, in its refusal to file a
§ 5K1.1 motion, see Puckett, 556 U.S. at 135; Barnes, 730 F.3d at 459. As
Franzen does not suggest that the waiver was unknowing or involuntary, she
is bound by the plea agreement, including the appeal waiver. United States v.
Baymon, 312 F.3d 725, 729-30 (5th Cir. 2002).
      In view of the foregoing, the Government’s motion to dismiss the appeal
is GRANTED, and we dispense with any further briefing on the appeal. The
Government’s alternative motion for summary affirmance is DENIED.
      APPEAL DISMISSED.




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