                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       May 25, 2006

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-30108
                             Summary Calendar



                        UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                                   versus

                   HARRY HANDY, also known as Dubie,

                           Defendant-Appellant.

                           --------------------
             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                          USDC No. 2:03-CV-2071
                        USDC No. 2:00-CR-319-1-D
                           --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Harry     Handy   appeals   the   district   court’s   denial    of   his

28 U.S.C. § 2255 motion challenging his guilty-plea conviction for

conspiracy to possess with intent to distribute more than five

kilograms of cocaine and more than 50 grams of cocaine base.                  A

judge of this court granted Handy’s motion for a certificate of

appealability (COA) on the following issues: (1) whether Handy’s

trial attorneys were ineffective in that they promised falsely that

Handy would be sentenced to no more than 13 years in prison if he

     *
       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this opinion should not be published and is not precedent except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. 04-30108
                                   -2-

pleaded guilty; (2) whether his attorneys’ false promise rendered

his guilty plea unknowing and involuntary; and (3) whether the

district court should have conducted an evidentiary hearing on

these issues.   United States v. Handy, No. 04-30108 (5th Cir. Aug.

18, 2004)(unpublished).     On reconsideration, a panel of this court

granted a COA on the additional issue whether Handy’s trial counsel

was   ineffective   for   failing   to   object   at   sentencing   to   the

Government’s breach of the plea agreement. United States v. Handy,

No. 04-30108 (5th Cir. Oct. 27, 2004) (unpublished).

      Handy argues that his trial attorneys were ineffective in that

they induced him to plead guilty by falsely promising him that he

would receive no more than 13 to 17 years of imprisonment and they

advised him to deny that he was promised a specific sentence during

the guilty-plea hearing.      He also argues that the district court

erred in not considering the affidavits that he submitted. In view

of United States v. Herera, 412 F.3d 577, 580-82 (5th Cir. 2005),

the district court should have conducted an evidentiary hearing to

determine whether his attorneys advised Handy that he would not

receive more than 13 to 17 years of imprisonment and whether his

attorneys advised Handy to deny that he received a promise of a

specific sentence at the guilty-plea hearing.            Accordingly, the

district court’s judgment is vacated and the case is remanded for

an evidentiary hearing concerning these issues.

      Handy also argues that his trial attorneys failed to object to

the Government’s breach of the plea agreement.              Although the
                            No. 04-30108
                                 -3-

Government may bargain away its discretion concerning whether to

file a motion for a downward departure based on a defendant’s

substantial assistance under U.S.S.G. § 5K1.1, the Government did

not do so in this case.     See United States v. Aderholt, 87 F.3d

740, 742 (5th Cir. 1996). Handy’s plea agreement expressly states:

“It shall be in the sole discretion of the United States Attorney

as to whether a motion requesting departure from the sentencing

guidelines should be filed.”   Handy’s case is distinguishable from

United States v. Laday, 56 F.3d 24, 25-26 (5th Cir. 1995), in which

the Government did not retain the discretion to determine whether

to file a § 5K1.1 motion.   Handy has not shown that the Government

breached the plea agreement in the instant case by not filing a

§ 5K1.1 motion for a downward departure based on his substantial

assistance. See Aderholt, 87 F.3d at 742.   Therefore, the district

court did not err in holding that Handy’s trial counsel was not

ineffective for failing to object to the Government’s alleged

breach of the plea agreement.    See United States v. Kimler, 167

F.3d 889, 893 (5th Cir. 1999).

     In his brief, Handy raises two additional issues:     (1) his

trial attorneys were ineffective in that they failed to investigate

the facts, file objections to, and present evidence in opposition

to the two-level sentencing enhancement for possession of a weapon

pursuant to U.S.S.G. § 2D1.1(b)(1); and (2) his appellate attorney

was ineffective in that he failed to argue that the district court

failed to establish on the record at the rearraignment hearing both
                             No. 04-30108
                                  -4-

the factual basis for the plea and the elements of the offense.     A

COA was not granted as to these issues and, therefore, this court

lacks    jurisdiction   to   consider   them.   See   28   U.S.C.   §

2253(c)(1)(C); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir.

1997).

     AFFIRMED IN PART; VACATED IN PART; REMANDED FOR EVIDENTIARY

HEARING.
