                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-51215
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

WILLIE E. PHILLIPS, also known as Big Willie,

                                      Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. SA-02-CR-395-1
                          --------------------

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Willie E. Phillips, federal prisoner # 31582-180, appeals

the sentence imposed following his guilty-plea conviction for

conspiracy to manufacture and distribute cocaine base and

conspiracy to launder money.     Phillips argues that the Government

engaged in prosecutorial vindictiveness and breached the terms of

his plea agreement by failing to file a motion for a downward

departure.     He contends that the district court should have

enforced this provision or allowed him to withdraw his guilty


     *
       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this opinion should not be published and is not precedent except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. 03-51215
                                -2-

plea.   Phillips also asserts that his sentence is

unconstitutional under the Sixth Amendment in light of Blakely v.

Washington, 124 S. Ct. 2531 (2004).

     We review de novo the district court’s determination whether

the Government breached a plea agreement.     United States v.

Price, 95 F.3d 364, 367 (5th Cir. 1996).     The defendant bears the

burden of establishing a breach.    Id.   As part of the plea

agreement, the Government retained the “sole discretion” to

determine whether to file a motion for a downward departure on

Phillips’s behalf.   Phillips concedes that this court has held

that when the Government retains discretion whether to file a

motion for a downward departure its decision is reviewable only

to determine whether the Government acted pursuant to an

unconstitutional motive.   However, he argues, citing law from

other circuits, that this court should expand its review of such

decisions to include whether the Government acted in bad faith in

deciding not to move for a downward departure.

     Because the Government retained its discretion to determine

whether to move for a downward departure and Phillips has not

ascribed any unconstitutional motive to this decision, we are

bound by our prior decisions in United States v. Aderholt, 87

F.3d 740, 741-42 (5th Cir. 1996), and Price to hold that he has

not established a breach of the plea agreement and is not

entitled to relief on this issue.
                           No. 03-51215
                                -3-

     Phillips’s claim of sentencing error under the Sixth

Amendment is barred by the waiver-of-appeal provision in his plea

agreement.   See United States v. McKinney, 406 F.3d 744, 746-47

(5th Cir. 2005).

     AFFIRMED.
