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

                                                                            FILED
                                                                           July 11, 2008

                                     No. 07-31050                     Charles R. Fulbruge III
                                   Summary Calender                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

JOSEPH DEGREAT

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CR-00143


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
       Joseph DeGreat appeals his sentence after pleading guilty to conspiring
to possess various illegal drugs with the intent to distribute. The government
has moved to dismiss the appeal since DeGreat’s guilty plea included a waiver
of his right to appeal. For the reasons that follow, we determine that DeGreat’s
appeal waiver is valid and that this appeal should therefore be dismissed.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-31050

      DeGreat agreed to plead guilty to a drug conspiracy charge in exchange for
the government’s agreement not to charge him with a prior felony drug
conviction under 21 U.S.C. § 851, which would have triggered a 20-year
mandatory minimum. In the plea agreement, DeGreat agreed to waive his right
to appeal his sentence unless the sentence imposed exceeded the statutory
maximum, which was a life sentence. DeGreat eventually received a 10-year
prison term. He then filed this appeal of his sentence.
      DeGreat contends that his waiver of his appellate rights is void. He
argues that the district court breached the plea agreement when it gave him a
higher sentenced based, in part, on the fact that the government had agreed not
to pursue the § 851 charge. This consideration, DeGreat argues, denied him the
benefit of his bargain. But even if he the district court did deny him the benefit
of his bargain, the district court cannot “breach” a plea agreement, as the
agreement is solely an agreement between the government and DeGreat. See,
e.g., United States v. Williams, 184 F.3d 666, 671 (7th Cir. 1999) (observing that
the court had “repeatedly indicated that ‘a plea agreement is a contractual
arrangement between two parties, the defendant and the government’” and the
district court “‘is not a party to the contract.’” (quoting United States v.
Standiford, 148 F.3d 864, 868 (7th Cir. 1998))). DeGreat bargained for certain
things from the government and he knew that the ultimate sentencing decision
would be left up to the district court. The government fulfilled its end of the
bargain. And the exception to the appellate waiver—that DeGreat be sentenced
under the statutory maximum—is not met since DeGreat’s ten year sentence is
less than the statutory maximum of life in prison. The appeal waiver should
therefore be enforced.
      The government’s motion to dismiss is GRANTED and its alternative
motion for a 30-day extension to file a responsive brief is DENIED.



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