*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opinion should not be published and is not precedent except under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. 97-50084

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES COX,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Western District of Texas

(MO-95-CR-50-14)

 

October 27, 1997

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

Defendant-appellant James Cox (Cox) appeals his sentence

following a guilty plea for conspiracy to obtain moneys, funds,

assets, and other property owned by, and under the custody and

control of, a financial institution by means of materially false

and fraudulent pretenses, representations, and promises in
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violation of 18 U.S.C. § 1344(2). 

Prior to sentencing, Cox claimed that the Government had

breached its plea agreement with him by failing to move for a

downward departure and requested that the district court either set

aside the plea agreement or compel the Government to move for a

downward departure. The district court found that Cox failed to

prove, by a preponderance of the evidence, that the Government

breached its plea agreement with him. On appeal, Cox claims that

the Government committed itself to move for a downward departure

and that its refusal to do so was a breach of the plea agreement.

He further argues that the Government entered into the plea

agreement in bad faith, never intending to fulfill its part of the

bargain. 

As our precedents make clear, "where the plea agreement

expressly states that the government retains ‘sole discretion’ over

the decision as to whether or not to submit a motion, we have held

that a refusal to do so is reviewable only for unconstitutional

motive." United States v. Price, 95 F.3d 364, 368 (5th Cir. 1996)

(footnote omitted). The plea agreement in the case at bar

specifically states that "[t]he parties recognize, stipulate and

agree" that the decision to file a motion for downward departure

"lies within the sole discretion" of the Government. The record

does not support Cox’s assertion that the Government entered into

the plea agreement in bad faith. Further, Cox has failed to direct
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this Court to any evidence in the record that would indicate that

the Government’s decision not to move for a downward departure was

the product of a malign, let alone a constitutionally

impermissible, motive. Accordingly, we hold that the district

court did not err in refusing to abrogate the plea agreement. 

In his plea agreement, Cox specifically waived his right to

contest issues regarding the calculation of his sentence and

restitution. The record indicates that this waiver was knowing and

voluntary. As we have previously recognized that the statutory

right to appeal may be waived as part of a plea agreement, see

United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir. 1992), we

decline to address Cox’s claims of alleged error in the

determination of his sentence. 

Finally, Cox argues that the district court’s failure to

admonish him at sentencing of his right to appeal as required by

Rule 32(c)(5) constitutes reversible error. Given that Cox waived

his right to appeal, it is not clear that the district court erred

in failing to admonish Cox. Assuming, arguendo, that there was

error, we hold that any error made by the district court in failing

to inform Cox of any unwaived appellate rights was harmless. See

United States v. Garcia-Flores, 906 F.2d 147, 148-49 (5th Cir.

1990).

For the foregoing reasons, the judgment of the district court

is
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AFFIRMED.