                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                 No. 01-40164
                               Summary Calendar



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus


TRACY DUANE PRYOR,

                                                  Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Eastern District of Texas
                         USDC No. 6:00-CR-37-1
                          --------------------
                             March 27, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Tracy Duane Pryor appeals his guilty-plea conviction for

possession     with   intent   to    distribute    methamphetamine       and   his

sentence.    He argues that the waiver-of-appeal provision in his

plea agreement is not enforceable because the magistrate judge and

district court did not advise him of the waiver provision, and

instead   advised     him   that    he   could   appeal   any   aspect    of   his

sentence. Although the Government summarized the terms of the plea

agreement, including the waiver provision, at the rearraignment


     *
        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that this opinion should not be published and is not precedent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. 01-40164
                                  -2-

hearing, the magistrate judge did not advise Pryor that he was

waiving his right to appeal and advised him that he or the

Government may have the right to appeal the sentence imposed.

Because the magistrate judge did not advise Pryor of the waiver-of-

appeal provision, the waiver is not enforceable. See United States

v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).

     Pryor   argues   that   his   guilty   plea   was    not   knowing   and

voluntary because the magistrate judge did not advise him that he

was agreeing to provide substantial assistance to the Government in

return for a reduction in his sentence from the 121-151 month

sentencing range to the 120-month statutory minimum sentence.             The

record indicates that Pryor was advised of the statutory minimum

and maximum sentences for the offense and that his guilty plea was

voluntary and not the result of promises or threats outside of the

plea agreement. Rule 11 of the Federal Rules of Criminal Procedure

did not require the magistrate judge to advise Pryor further that

if he provided substantial assistance, his sentence could only be

reduced to 120 months.

     Pryor argues that the Government breached the plea agreement

by not filing a motion pursuant to 18 U.S.C. § 3553(e) which would

have allowed the district court to impose a sentence below the

statutory minimum sentence.        Because Pryor did not raise this

argument in the district court, review is limited to plain error.

See United States v. Branam, 231 F.3d 931, 933 (5th Cir. 2000). The

plea agreement provided that the Government may file a motion for

a downward departure under either U.S.S.G. § 5K1.1 motion or Rule

35 of the Federal Rules of Criminal Procedure.           The plea agreement
                          No. 01-40164
                               -3-

did not provide or require that the Government file a motion for a

downward departure under 18 U.S.C. § 3553(e).      The Government

complied with the plea agreement by filing a U.S.S.G. § 5K1.1

motion, and did not breach the plea agreement by failing to file a

motion under 18 U.S.C. § 3553(e).

     AFFIRMED.
