1 District Judge of the Southern District of Texas, sitting

by designation. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 93-7124

___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE GARCIA-BONILLA,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

____________________________________________________ (December 17, 1993)

Before REAVLEY and DAVIS, Circuit Judges, and ROSENTHAL 1

, District

Judge.

DAVIS, Circuit Judge:

Jose Garcia-Bonilla ( Garcia) pled guilty to one count of a

two-count indictment charging him with conspiracy to possess with

inten t to distribute a controlled substance, and aiding and

abetting in the possession with intent to distribute a controlled

substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(a) and 18

U.S.C. § 2. Garcia challenges his sentence on the ground that the

prosecution violated the plea agreement by failing to move for a

downward departure for Garcia's s ubstantial assistance. We

conclude that the government did not violate the plea agreement and

we affirm.2 I.

Garcia pled guilty under Fed. R. Crim. P. 11(e)(1)(B) pursuant

to a written plea agreement. In the plea agreement, the prosecutor

agreed to dismiss one count of the two-count indictment and refrain

from further prosecuting Garcia for the criminal conduct charged in

the indictment. The government also retained the option of moving

for a downward departure under the Sentencing Guidelines if Garcia

provided substantial assistance to the government. Specifically,

this section of the agreement provided:

The United Sta tes reserves its option to seek any

departure from the applicable sentencing guidelines,

pursuant to Section 5K of the Sentencing Guidelines and

Policy Statements

, or Rule 35(b ) of the Federal Rules

Cri minal Procedure, if in its discretion, it is

determined that such a de parture is appropriate. The

defendant agrees that the decision whether to file such

a motion rests within the sole discretion of the United

States.

At the rearraignment, the Assistant U. S. Attorney stated that

Garcia and his co-defendants had agreed to testify against one

another and to cooperate with U.S. Customs Agents. The U.S.

Attorney went on to state that:

And provided that they do tell the truth regarding

these matters, the Government will so advise the Court,

and if they have provided subst a ntial assistance as provided for in the plea agreement, the Government will

file with the court a 5K1.1 motion asking for the court

to consider a downward de parture from the Sentencing

Guidelines.

. . .

If the defendants live up to their agreement, I feel

certain that the U.S. Attorney's Office for the Southern

District of Texas, Houston Division will live up to our

agreement whether it's me persona lly or some other

prosecutor representing the Government.

At sen tencing however, the government refused to move for a

downward departure, stating that the informatio n Garcia had3

provided was of no value to law enforcement officers. The district

court, citing Wade v. United States,

___ U.S.

___, 113 S. Ct. 1840,

118 L. Ed. 2d 524 (1992), refused to depart downward under § 5K1.1

and sentenced Garcia to the statutory minimum of 120 months. In

this appeal, Garcia contends that the government breached the plea

agreement by refusing to move for a downward departure under §

5K1.1.

II.

Garcia argues that the government breached its plea agreement

and requests specific performance of the agreement. Specifically,

Garcia requests that he be resentenced with the benefit of a §

5K1.1 downward departure.

Whether the government's conduct violates the terms of a plea

agreement is a question of law. U nited Sta tes v. Valencia , 985

F.2d 758, 760 (5th Cir. 1993). The defendant bears the burden of

proving the underlying f acts that establish a breach by a

preponderance of the evidenc e. United States v. Hernandez , 996

F.2d 62, 64 (5th Cir. 1993). In determining whether the government

has violated a plea agreement, we must determine "whet her the

government's conduct is consistent with the parties' reasonable

understanding of the agreement." Valencia , 985 F.2d at 761.

In Wade

, 113 S. Ct. at 1844, the Supreme Court held that a

sentencing court could not grant a defendant a downward departure

under § 5K1.1 in the absence of a government motion requesting such

relief. The Court also held that § 5K1.1 does not require the

government to move for a downward departure if the defendant

provides substantial assistance, but rather grants the government4

discretionary power to make such a motion. Id. It follows

therefore that a defendant who provides substantial assistance

without receiving a downward departure is not entitled "to a remedy

or ev en to discovery or an evidentiary hearing" unless the

prosecution relied on an unconstitutional motive in refusing to

file a 5K1.1 motion. Wade , 113 S. Ct. at 1844.

But the Court i n Wade recognized that the government could

sacrifice its discretion and obligate itself to move for a downward

departure in exchange for the defendant's guilty plea. Garcia

asserts that his guilty plea was given in exc hange for such an

obligation. In support of his position, Garcia relies on U nited

States v. Watson

, 988 F.2d 544, 552 (5th Cir. 1993), pet. for cert.

filed , (U.S. July 29, 1993) (No. 93-5407) and Hernandez , 996 F.2d

at 64, where this court recognized that the government can bargain

away its discretionary power to move for a downward departure under

§ 5K1.1. Garcia's reliance on W atson and Hernandez is misplaced

because his plea agreement is distinguishable from the plea

agreements in those cases.

The plea agreement in Watson provided that "if the defendant

complie[d] wi th section 5K1.1 of the sentencing guidelines, the

G overnment w[ould] file a motion

. . . asking for a d ownward

depar ture." I d. at 548. We held that the government "did not

r eserve the discretion to determine whether the defendant's

cooperation merited a § 5K1.1 motion," and therefore remanded for

findings as to whether the defendant had complied with the plea

agreement, entitling him to a downward departure. I d. at 551. The

plea agreement in Hernandez provided that "the government may make5

a m otion for downward departure at sentencing." H ernandez

, 996

F.2d at 65. The court noted that "the record shed[] no light on

the degree of discretion, if any, the parties intended for the

government to retain by the use of the permissive word 'may'," and

remanded the case for an interpretation of the agreement. Id.

By contrast, the agreement Garcia entered into with the

government expressly provides that the government retains absolute

discretion to move for a downward departure under § 5 K1.1: "The

defendant agrees that the decision whether to file [a 5K1.1] motion

rests within the sole discretion of the United States." (emphasis

added). The agreement therefore plainly reserves the government's

discretion to receive information from the defendant and then

exercise its discretion on whether to file for a downward

departure. The agreement does not obligate the government to move

for a downward departure. In the absence of such an obligation,

the defendant is not entitled to relief under Wade unless the

government's refusal to file a § 5K1. 1 motion was based on an

unconstitutional motive. Garcia does not argue that the

government's re fusal was based on an unconstitutional motive.

Moreover, the prosecutor's statements at rearraignment did not

amend the plea agreement to reduce the government's discretion to

move for a § 5K1.1 departure. Although the prosecutor referred to

the government's willingness to file a § 5K1.1 mo tion, the

prosecutor agreed to make such a motion in accordance with the plea

agreement. The prosecutor gave no indication that the government

intended to relinquish the discretion it had e xpressly retained

under the written agreement. T he prosecutor stated t hat the6

government would file for a downward departure if Garcia "provided

substantial assistance as provided for in the plea agreement

. "

(emphasis added). The prosecutor also warned that his authority to

move for a downward departure was also conditioned on the approval

of his supervisors.

Because the government retained sole discretion under the plea

agreement to seek a downward departu re for Garcia's substantial

assistance, the government's failure to file a § 5K1.1 motion did

not constitute a breach of the plea agreement. Garcia therefore is

not entitled to be resent enced and we therefore affirm his

sentence.

AFFIRMED.