                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             DEC 3, 2008
                              No. 08-10670                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 07-00080-CR-ORL-31-KRS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

RANDY JOE GONZALEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (December 3, 2008)

Before DUBINA, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Defendant-appellant Randy Joe Gonzalez pleaded guilty to conspiracy to
possess with intent to distribute five or more kilograms of cocaine, in violation of

21 U.S.C. § 846. The offense carried a statutory mandatory minimum sentence of

120 months’ imprisonment. As part of the plea agreement, the government

promised to recommend a sentence within the guidelines range, to consider a

reduction for substantial assistance under U.S.S.G. § 5K1.1, and to move for a

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The

government further agreed that it would not oppose Gonzalez’s request for a

sentence below the statutory mandatory minimum under the safety-valve

provisions. The plea agreement also contained a waiver-of-appeal provision

barring Gonzalez from appealing the sentence imposed except in circumstances not

applicable here.

      At sentencing, the government indicated that Gonzalez’s assistance to that

point did not warrant a reduction and thus any § 5K1.1 reduction was not ripe for

consideration. The government noted that it would re-evaluate whether to file a

motion in the future based on information received from Gonzalez. The court then

determined the adjusted offense level to be 29, the criminal history category to be

II, and the applicable guidelines range to be 120 to 121 months’ imprisonment due

to the mandatory minimum sentence. The court’s calculations included a reduction

for acceptable of responsibility. Gonzalez, however, never requested a reduction



                                          2
under the safety-valve provision. The court imposed the mandatory minimum

sentence of 120 months’ imprisonment. Gonzalez made no objections to the

sentence imposed.

       On appeal, Gonzalez argues that the government breached the plea

agreement by making sentencing recommendations inconsistent with the

agreement and failing to move for a reduction for acceptance of responsibility. He

further contends the court was not bound by the mandatory minimum sentence

because the guidelines are advisory.

       Generally, we review de novo whether the government has breached a plea

agreement. United States v. Al-Arian, 514 F.3d 1184, 1191 (11th Cir.), cert.

denied, 129 S.Ct. 288 (2008). Because Gonzalez failed to raise this issue before

the district court, however, we review any breach for plain error. United States v.

De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). Under plain error review,

“there must be (1) an error, (2) that is plain, (3) that affects the defendant’s

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.

       Here, the government did not breach the plea agreement. All of the

government’s recommendations were consistent with the plea agreement, and

Gonzalez in fact received a three-level reduction under § 3E1.1. Moreover, the



                                             3
decision not to file a § 5K1.1 motion is within the prosecutor’s discretion and is

not subject to review unless the decision was based on an unconstitutional motive.

See Wade v. United States, 504 U.S. 181, 185-186 (1992). There was no such

unconstitutional motive in the instant case. Furthermore, Gonzalez’s challenge to

his sentence is barred by the plea agreement’s valid sentence appeal waiver.1 See

United States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001); United States v.

Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).

       Finally, there is no merit to Gonzalez’s argument that the court was not

bound by the statutory mandatory minimum sentence. Notably, Gonzalez did not

request a safety-valve reduction. And even if he had, he was ineligible due to his

criminal history. See U.S.S.G. § 5C1.2(a)(1). Moreover, this court has repeatedly

held that district courts are bound by mandatory minimum sentences even though

the sentencing guidelines are advisory. United States v. Shelton, 400 F.3d 1325,

1333 n.10 (11th Cir. 2005)

       For the foregoing reasons, we affirm Gonzalez’s sentence.

       AFFIRMED.




       1
          Gonzalez does not argue – cannot show – that the waiver was entered into involuntarily.
See Weaver, 275 F.3d at 1333. In fact, he concedes that he has waived his right to appeal his
sentence.

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