United States v. Brown

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 20, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50196
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID BRIAN BROWN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-171-ALL
--------------------
Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
David Brian Brown appeals his guilty-plea conviction and
sentence for attempting to manufacture methamphetamine within
1000 feet of a school. As part of his plea agreement, Brown
signed a waiver provision wherein he specifically consented to be
sentenced under the applicable United States Sentencing
Guidelines. The Government seeks enforcement of that waiver.
“[A] defendant who agreed ‘to be sentenced pursuant to the
applicable Sentencing Guidelines’ is not precluded from raising

-- 1 of 3 --

No. 05-50196
-2-
on appeal an alleged Fanfan error.” United States v.
Reyes-Celestino, 443 F.3d 451, 453 (5th Cir. 2006). Accordingly,
the waiver provision does not bar Brown’s appeal.
For the first time on appeal, Brown argues that the district
court erred when it sentenced him pursuant to the mandatory
Sentencing Guidelines held unconstitutional in United States v.
Booker, 543 U.S. 220 (2005). Application of the Sentencing
Guidelines in their mandatory form constitutes error that is
plain. United States v. Valenzuela-Quevedo, 407 F.3d 728, 733
(5th Cir.), cert. denied, 126 S. Ct. 267 (2005). However,
nothing in the record indicates that the district court would
have imposed a different sentence if it had known that it was not
bound by the Sentencing Guidelines. Accordingly, the district
court’s error did not affect Brown’s substantial rights. See id.
at 733-34. Brown, therefore, has not established reversible
plain error.
Brown also argues that the plea agreement should be
invalidated because the Government breached the agreement by
refusing to move for a downward departure pursuant to
U.S.S.G. § 5K1.1. Under the terms of the plea agreement, the
Government had the “sole and exclusive” authority to determine
whether Brown provided substantial assistance warranting the
filing of a motion for downward departure. Accordingly, Brown’s
contention that the Government breached the plea agreement by

-- 2 of 3 --

No. 05-50196
-3-
refusing to exercise its discretion is without merit. See United
States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996).
AFFIRMED.

-- 3 of 3 --