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

                                                                  FILED
                                                                February 8, 2008
                               No. 07-50597
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

MARLOW SZODOC SMITH

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 7:06-CR-197-ALL


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Marlow Szodoc Smith pleaded guilty to possession of fifty grams or more
of cocaine base pursuant to a plea agreement in which the Government agreed
to consider filing a motion pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e)
if it determined that Smith had provided truthful information and truthful
testimony.    Smith acknowledged that the Government retained the “sole
discretion” whether to file such a motion. Smith waived his rights to appeal and



      *
      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should not be published and is not precedent except under the limited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. 07-50597

to seek post-conviction relief, except for claims of ineffective counsel or
prosecutorial misconduct unknown to Smith at the time of his sentencing
      At sentencing, the Government declined to move for a downward
departure on the basis that Smith had not yet fully cooperated or testified for the
Government. The Government stated that it would consider a future request for
a reduction in Smith’s sentence based on his assistance to the Government in
pending matters. The district court sentenced Smith to a 140-month term of
imprisonment, which was the low end of the advisory sentencing guidelines
range.
      Smith argues that the Government breached the plea agreement by
refusing to file a § 5K1.1 motion based on Smith’s substantial assistance and
that his appeal waiver is void due to the Government’s alleged breach of the
agreement. An alleged breach of a plea agreement may be raised on appeal
regardless whether the plea agreement contains a waiver provision. United
States v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002).
      Whether the Government has violated a plea agreement is a question of
law subject to de novo review. United States v. Witte, 25 F.3d 250, 262 (5th Cir.
1994). A plea agreement is valid if the Government’s conduct is consistent with
the defendant’s reasonable understanding of the agreement. Id. The defendant
must prove by a preponderance of the evidence that the Government breached
the agreement. Id. To obtain relief based on the denial of a discretionary motion
for downward departure, the defendant must show that the Government’s
refusal to exercise its discretion is due to an unconstitutional motive. United
States v. Price, 95 F.3d 364, 368 (5th Cir. 1996).
      In this case, the Government retained the sole discretion to determine
whether Smith’s cooperation warranted a motion for downward departure.
Smith does not suggest that any unconstitutional factor motivates the
Government’s decision not to move for a downward departure or that his waiver
of appellate rights was unknowing or involuntary. United States v. Garcia-

                                        2
                                No. 07-50597

Bonilla, 11 F.3d 45, 46-47 (5th Cir. 1993); United States v. Baymon, 312 F.3d
725, 729-30 (5th Cir. 2002). Accordingly, the waiver of appeal is valid and the
APPEAL IS DISMISSED.




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