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

                                                                  FILED
                                                               September 11, 2008
                               No. 07-40718
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

GUSTAVO VILLARREAL

                                          Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                          USDC No. 5:05-CR-1640-6


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Gustavo Villarreal appeals the 188-month sentence following his guilty
plea conviction for conspiracy to possess with intent to distribute over five
kilograms of cocaine. He contends that he was entitled to a downward departure
for substantial assistance and that the Government’s failure to file a motion
pursuant to Section 5K1.1 of the Sentencing Guidelines revealed bad faith.
Villarreal also contends that his within-Guidelines sentence is unreasonable.



      *
      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should not be published and is not precedent except under the limited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. 07-40718

      Villarreal was not entitled to a Section 5K1.1 motion. He has neither
established that the Government negotiated away its discretion to choose not to
file a motion, nor that the Government’s failure to file a motion was based on an
unconstitutional motive. See United States v. Aderholt, 87 F.3d 740, 742-43 (5th
Cir. 1996).   Villarreal has not even shown that he did actually provide
substantial assistance. Id.
      Villarreal’s unreasonable-sentence argument also fails. Villarreal has not
established procedural error in the district court’s sentencing process. See Gall
v. United States, 128 S. Ct. 586, 597 (2007). Nor has he established that the
district court abused its discretion by imposing a sentence within the applicable
Guidelines range, which is presumptively reasonable. See United States v.
Cisteros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED.




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