                                                      United States Court of Appeals
                                                               Fifth Circuit
                IN THE UNITED STATES COURT OF APPEALS   FILED
                        FOR THE FIFTH CIRCUIT
                                                     December 11, 2006

                                                     Charles R. Fulbruge III
                      No. 05-21005 c/w 05-21083              Clerk
                           Summary Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

KHANH DUY HA,

                                      Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:03-CR-169-2
                      --------------------

Before REAVLEY, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Khanh Duy Ha appeals his guilty plea conviction and sentence

for conspiracy to possess with intent to distribute

methamphetamine and conspiracy to possess with intent to

distribute ecstasy.    Ha argues that the district court clearly

erred in enhancing his offense level pursuant to U.S.S.G.

§ 2D1.1(b)(1) and that his guilty plea was rendered involuntary

when the Government breached the plea agreement by failing to

move for a U.S.S.G. § 5K1.1 departure.



     *
       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this opinion should not be published and is not precedent except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. 05-21005 c/w 05-21083
                                 -2-

     We first address Ha’s breach argument, which we review de

novo.    See United States v. Saling, 205 F.3d 764, 766 (5th Cir.

2000).    In Ha’s plea agreement, the Government retained sole

discretion to move for a § 5K1.1 departure, and Ha does not argue

that the Government’s refusal to do so was based on an

unconstitutional motive.    See United States v. Garcia-Bonilla, 11

F.3d 45, 46 (5th Cir. 1993).    Furthermore, the Government’s

conduct was not inconsistent with the parties’ reasonable

understanding of the agreement.    See United States v. Wilder, 15

F.3d 1292, 1295 (5th Cir. 1994).    In light of the foregoing, Ha

has not borne his burden of establishing by a preponderance of

the evidence that the Government breached the plea agreement.

See United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).

     Ha’s plea agreement contained an appeal waiver, which the

Government seeks to enforce and which the record establishes was

entered into knowingly and voluntarily.    See United States v.

Robinson, 187 F.3d 516, 517 (5th Cir. 1999).      Therefore, Ha’s

challenge to the § 2D1.1(b)(1) enhancement is barred by his

appeal waiver and is dismissed.    See United States v. Melancon,

972 F.2d 566, 568 (5th Cir. 1992).

     DISMISSED.
