                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 29, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-40042
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                              versus

                        JOSE LUIS BALDERAS,

                       Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:05-CV-170
                      USDC No. 2:03-CR-289-2
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jose Luis Balderas, federal prisoner # 24696-179, appeals

following the denial of his 28 U.S.C. § 2255 motion, wherein he

challenged his conviction for conspiracy to commit wire fraud and

mail fraud and conspiracy to launder money.      The district court

granted Balderas a limited certificate of appealability (COA) on

the issue whether the Government breached his plea agreement and,

if so, whether Balderas’s waiver of appeal is valid.        We review

conclusions of law underlying the denial of a § 2255 motion            de


     *
       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this opinion should not be published and is not precedent except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. 06-40042
                                  -2-

novo and factual findings for clear error.             United States v.

Stricklin, 290 F.3d 748, 750 (5th Cir. 2002).

     With the benefit of liberal construction, Balderas argues that

the Government breached the plea agreement because it advocated

sentencing enhancements that were not included in the agreement and

that defense counsel was ineffective for failing to raise this

issue at sentencing or on appeal.       We conclude that the Government

provided the district court with factual information at sentencing

and did not affirmatively advocate for the sentencing enhancements.

See United States v. Munoz, 408 F.3d 222, 227 (5th Cir. 2005).

Balderas   also   argues   that   the   Government   breached   the   plea

agreement by failing to move for a promised downward departure.

The Government did not bargain away its discretion to move for a

departure; consequently, there is no breach.         See United States v.

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

     Because we conclude that the plea agreement was not breached,

we do not address claims which the district court held were barred

by the appeal waiver, including the claim that the district court

violated Balderas’s Sixth Amendment rights and United States v.

Booker, 543 U.S. 220 (2005).      See United States v. Burns, 433 F.3d

442, 450-51 (5th Cir. 2005).

     Balderas further argues that (1) his counsel was ineffective

for failing to file a direct appeal when expressly told to do so;

(2) the district court’s order of restitution exceeded the scope of

the indictment and the plea agreement, and counsel was ineffective
                            No. 06-40042
                                 -3-

for failing to object to the restitution order; and (3) the appeal

waiver is invalid because of an ambiguity in the plea agreement

concerning restitution. We do not consider these issues raised for

the first time on appeal.   See United States v. Cervantes, 132 F.3d

1106, 1109 (5th Cir. 1998).

     The district court’s judgment is AFFIRMED.
