United States v. Ha

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-21005 c/w 05-21083
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KHANH DUY HA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CR-169-2
--------------------
Before REAVLEY, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Khanh Duy Ha appeals his guilty plea conviction and sentence
for conspiracy to possess with intent to distribute
methamphetamine and conspiracy to possess with intent to
distribute ecstasy. Ha argues that the district court clearly
erred in enhancing his offense level pursuant to U.S.S.G.
§ 2D1.1(b)(1) and that his guilty plea was rendered involuntary
when the Government breached the plea agreement by failing to
move for a U.S.S.G. § 5K1.1 departure.
United States Court of Appeals
Fifth Circuit
F I L E D
December 11, 2006
Charles R. Fulbruge III
Clerk

-- 1 of 2 --

No. 05-21005 c/w 05-21083
-2-
We first address Ha’s breach argument, which we review de
novo. See United States v. Saling, 205 F.3d 764, 766 (5th Cir.
2000). In Ha’s plea agreement, the Government retained sole
discretion to move for a § 5K1.1 departure, and Ha does not argue
that the Government’s refusal to do so was based on an
unconstitutional motive. See United States v. Garcia-Bonilla, 11
F.3d 45, 46 (5th Cir. 1993). Furthermore, the Government’s
conduct was not inconsistent with the parties’ reasonable
understanding of the agreement. See United States v. Wilder, 15
F.3d 1292, 1295 (5th Cir. 1994). In light of the foregoing, Ha
has not borne his burden of establishing by a preponderance of
the evidence that the Government breached the plea agreement.
See United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996).
Ha’s plea agreement contained an appeal waiver, which the
Government seeks to enforce and which the record establishes was
entered into knowingly and voluntarily. See United States v.
Robinson, 187 F.3d 516, 517 (5th Cir. 1999). Therefore, Ha’s
challenge to the § 2D1.1(b)(1) enhancement is barred by his
appeal waiver and is dismissed. See United States v. Melancon,
972 F.2d 566, 568 (5th Cir. 1992).
DISMISSED.

-- 2 of 2 --