     Case: 10-40629     Document: 00511896049         Page: 1     Date Filed: 06/22/2012




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

                                                                            FILED
                                                                           June 22, 2012
                                     No. 10-40629
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ENRIQUE ALBERTO MOREJON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:05-CR-37-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Enrique Alberto Morejon appeals the 151-month sentence imposed
following his guilty plea conviction for conspiracy to possess five kilograms or
more of cocaine with the intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846.
The Government has filed a motion to dismiss the appeal or, alternatively, for
summary affirmance, or, alternatively, for an extension of time to file a brief.
The Government’s motion is DENIED.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-40629

      Morejon argues that the Government breached the plea agreement when
it failed to file a motion for a downward departure pursuant to U.S.S.G. § 5K1.1,
p.s., prior to his sentencing hearing in light of his substantial assistance. He
acknowledges that generally the Government is not required to file a § 5K1.1
motion, but he argues the Government bargained away its discretion by the
terms of the plea agreement.
      Whether the Government breached a plea agreement may be considered
despite an appeal waiver provision. United States v. Roberts, 624 F.3d 241, 244
(5th Cir. 2010). When a defendant does not raise the issue of breach in the
district court, review is limited to plain error. Puckett v. United States, 556 U.S.
129, 134-43 (2009); United States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996).
To show plain error, the appellant must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett, 556 U.S. at 135; United
States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). If the appellant
makes such a showing, this court has the discretion to correct the error but only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (internal quotation marks and citations
omitted).
      The defendant has the burden of proving the underlying facts establishing
a breach of the plea agreement by a preponderance of the evidence. United
States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir.1993). Absent a contrary
agreement, the decision whether to file a § 5K1.1 motion is discretionary. Wade
v. United States, 504 U.S. 181, 185 (1992). The Government may, however,
bargain away its discretion in a plea agreement. Garcia-Bonilla, 11 F.3d at 46.
This court reviews the specific language of the plea agreement in determining
whether the Government bargained away its discretion. Id. at 47.
      Morejon’s plea agreement provided that “[i]f, in its sole discretion, the
Government determines that Defendant has provided substantial assistance in
the investigation or prosecution of others, the United States will file” a motion

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                                     No. 10-40629

for a downward departure. It further provided that Morejon’s cooperation did
not automatically require the Government to request a downward departure or
a sentence reduction and that the time for filing the motion would be determined
by the Government.
       When addressing plea agreements containing both mandatory and
discretionary language, this court has held that the statement that the
Government “will” file the motion was expressly conditioned on the
Government’s discretionary determination on the issue of substantial assistance.
See Garcia-Bonilla, 11 F.3d at 46-47; United States v. Urbani, 967 F.2d 106, 107
(5th Cir. 1992). Although not expressed in the same language used in Urbani
or in Garcia-Bonilla, it nevertheless appears from the plain meaning of
Morejon’s agreement that the Government retained sole discretion in
determining whether to file a motion for a downward departure. See United
States v. Rueben, 51 F.3d 1046, 1995 WL 153584, at * 3 (5th Cir. Mar. 31, 1995)
(unpublished).1 Moreover, after stating that the Government “will” file the
motion, the plea agreement states that “Defendant’s cooperation does not
automatically require the United States to request a downward departure . . .
.” Thus, the statement in Morejon’s agreement that the Government “will” file
the motion was “expressly conditioned on the [G]overnment’s discretionary
determination whether [Morejon] has provided substantial assistance, [which]
clearly constitutes retention by the [G]overnment of its discretion concerning the
filing of a § 5K1.1 motion.” Rueben, 51 F.3d at * 3.
       Because the plea agreement reflects that the Government retained the
discretion whether to file a motion for a downward departure, the Government’s
refusal to file such motion is reviewable only for unconstitutional motive, see
United States v. Aderholt, 87 F.3d 740, 742 (5th Cir.1996), or on the ground that



      1
        Although this court’s decision in Rueben was not published, “[u]npublished opinions
issued before January 1, 1996, are precedent” in this Circuit. 5TH CIR. R. 47.5.3.

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                                  No. 10-40629

the refusal to file the motion was not rationally related to a legitimate
governmental end, see Wade, 504 U.S. at 186. Morejon does not argue that the
Government had an unconstitutional motive or that the denial was not
rationally related to a legitimate government end. Morejon has not met his
burden of proving that the Government breached the plea agreement by a
preponderance of the evidence, see Garcia-Bonilla, 11 F.3d at 46, and he has not
shown plain error, see Puckett, 556 U.S. at 135.
      Morejon also argues that to the extent that the district court considered
a downward departure under § 5K1.1, it misapplied § 5K1.1 by confusing
acceptance of responsibility under § 3E1.1(b) with       § 5K1.1.    In the plea
agreement, Morejon waived the right to appeal his conviction and sentence on
all grounds but reserved the right to appeal a sentence in excess of the statutory
maximum or a claim of ineffective assistance of counsel that affected the validity
of the waiver itself. This court reviews de novo whether an appeal waiver bars
an appeal. United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). The
record reflects that Morejon’s appeal waiver was knowing and voluntary. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Because Morejon’s
argument that the district court misinterpreted the Guidelines does not fall
within either of the exceptions listed in the waiver provision, we do not address
the issue. See United States v. Sanchez Guerrero, 546 F.3d 328, 335 (5th Cir.
2008).
      AFFIRMED.




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