                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 October 11, 2005
                               No. 05-11581                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 04-00091-CR-003

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

DARIUS SELTZER,

                                                             Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                               (October 11, 2005)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Darius Seltzer appeals his convictions for (1) interference with
commerce by threats or violence, in violation of 18 U.S.C. § 1951(a), and (2) use

of a firearm during the commission of a crime of violence, in violation of 18

U.S.C. § 924(c)(1)(A). On appeal, Seltzer argues that, because he provided

substantial assistance to the government in its prosecution of his co-conspirators,

the government breached its plea agreement with him by not moving for a

downward departure to his sentence pursuant to U.S.S.G. § 5K1.1. Alternatively,

Seltzer claims that, as a result of the decision of the Supreme Court in United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district

court had the authority to grant this departure in its discretion, and it erred in not so

doing. In advancing these arguments, Seltzer acknowledges our decision in United

States v. Forney, 9 F.3d 1492 (11th Cir. 1993), stating that appellate review of the

government’s decision not to recommend a downward departure is appropriate

only when the defendant alleges that the government’s decision resulted from an

unconstitutional motive, but asserts that his case is factually distinguishable from

Forney.

      The government argues that Seltzer waived the right to appeal his sentence

when he entered into the plea agreement. In this case, however, Seltzer is not

appealing his sentence, but rather, is arguing that the government breached its plea

agreement with him. We have previously considered appeals alleging government



                                            2
breach of a plea agreement despite sentence appeal waivers. See United States v.

Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). Thus the government’s argument

is meritless and we may consider this appeal.

      We review de novo the issue of “[w]hether the government has breached a

plea agreement.” United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).

In United States v. Crawford, 407 F.3d 1174 (11th Cir. 2005), a post-Booker

decision, we made clear that a motion from the government is required before a

district court may depart downward from the guideline range in determining a

defendant’s sentence, stating:

             The Guidelines allow for a downward departure “upon
             motion of the government” if the defendant provided
             substantial assistance to the government. A sentencing
             court cannot depart from an advisory guideline range
             absent a motion from the government. Because the
             government did not file a substantial assistance motion,
             any assistance [the defendant] might have provided the
             government was not a permissible ground for a
             downward departure in calculating an advisory guideline
             range.

Id. at 1182 (internal citations omitted and emphasis added). In explaining our role

concerning review of the government’s decision not to file a substantial assistance

motion, we have reasoned that “judicial review [of the government’s decision not

to file a U.S.S.G. § 5K1.1 motion] is appropriate when there is an allegation and a

substantial showing that the prosecution refused to file a substantial assistance

                                           3
motion because of a constitutionally impermissible motivation, such as race or

religion.” Forney, 9 F.3d at 1502 (emphasis omitted).

      Because Seltzer’s plea agreement did not contain a promise by the

government to move for a downward departure, and Seltzer has failed to articulate

an unconstitutional motive behind the government’s decision not to move for a

downward departure, Seltzer’s convictions are affirmed.

      AFFIRMED.




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