     Case: 10-20549     Document: 00511514247          Page: 1    Date Filed: 06/20/2011




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

                                                 FILED
                                                                            June 20, 2011
                                     No. 10-20549
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

PATRICIO PENA MARTINEZ, also known as Pato,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CR-796-2


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Patricio Pena Martinez pleaded guilty pursuant to a written plea
agreement to conspiracy to possess with intent to distribute five kilograms or
more of cocaine. The district court imposed a within-guideline sentence of 108
months in prison.
        Martinez first argues that because the record clearly reflects that the
district court believed that it had no discretion to consider his alleged
cooperation in the absence of a U.S.S.G. § 5K1.1 motion, the district court

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 10-20549    Document: 00511514247      Page: 2   Date Filed: 06/20/2011

                                  No. 10-20549

effectively rendered the Guidelines mandatory, in violation of United States v.
Booker, 543 U.S. 220 (2005).
      Booker rendered the Sentencing Guidelines advisory rather than
mandatory. See id. at 245-46. Booker instructs appellate courts to review
sentences for reasonableness in light of the statutory sentencing factors set forth
in 18 U.S.C. § 3553(a). Id. at 260-62.
      The district court’s statements at sentencing belie Martinez’s argument
that the court believed it could not depart in the absence of a § 5K1.1 motion.
The district court, after hearing the sentencing arguments of counsel, stated that
it had considered the factors in § 3553(a) and found that a sentence within the
guideline range was “appropriate.” The court declined to depart downward,
believing that it was “not warranted.” See United States v. Washington, 480 F.3d
309, 320 (5th Cir. 2007) (“[T]he district court implicitly recognized that it could
deviate from the Guidelines, but based on the facts before it, decided not to do
so.”). The district court did not state that it could not depart because no § 5K1.1
motion had been filed; it merely noted that no § 5K1.1 motion had been filed.
      We also reject Martinez’s assertion that the Government breached the plea
agreement by failing to file a § 5K1.1 motion for downward departure based on
his substantial cooperation.      Because Martinez neither shows that the
Government bargained away its discretion to file a § 5K1.1 motion nor argues
that the Government acted with unconstitutional motive, his downward
departure claim is not reviewable. See Wade v. United States, 504 U.S. 181,
185-87 (1992); United States v. Urbani, 967 F.2d 106, 110-11 (5th Cir. 1992).
      AFFIRMED.




                                         2
