* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50597 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. MARLOW SZODOC SMITH Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:06-CR-197-ALL
Before WIENER, GARZA, and BENAVIDES, Circuit Judges. PER CURIAM: * Marlow Szodoc Smith pleaded guilty to possession offifty grams or more ofcocaine base pursuant to a plea agreement in which the Government agreed to consider filing a motion pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e) if it determined that Smith had provided truthful information and truthful testimony. Smith acknowledged that the Government retained the “sole discretion” whether tofile such a motion. Smith waived his rights to appeal and United States Court of Appeals

Fifth Circuit 

### F I L E D February 8, 2008 Charles R. Fulbruge III ClerkNo. 07-50597

2 to seek post-conviction relief, except for claims of ineffective counsel or prosecutorial misconduct unknown to Smith at the time of his sentencing At sentencing, the Government declined to move for a downward departureon the basis that Smith had not yet fully cooperated or testified for the Government. The Government stated that it would consider a future request for a reduction in Smith’s sentence based on his assistance to the Government in pending matters. The district court sentenced Smith to a 140-month term of imprisonment, which was the low end of the advisory sentencing guidelines range. Smith argues that the Government breached the plea agreement by refusing to file a § 5K1.1 motion based on Smith’s substantial assistance and that his appeal waiver is void due to the Government’s alleged breach of the agreement. An alleged breach of a plea agreement may be raised on appeal regardless whether the plea agreement contains a waiver provision. U nited States v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002). Whether the Government has violated a plea agreement is a question of lawsubject to de novo review. U nited Statesv. Witte , 25 F.3d 250, 262 (5th Cir. 1994). A plea agreement is valid if the Government’s conduct is consistent with the defendant’s reasonable understanding ofthe agreement. I d. T he defendant must prove by a preponderance of the evidence that the Government breached theagreement. I d. To obtain relief based on the denial of a discretionary motion for downward departure, the defendant must show that the Government’s refusal to exercise its discretion is due to an unconstitutional motive. U nited States v. Price

, 95 F.3d 364, 368 (5th Cir. 1996). In this case, the Government retained the sole discretion to determine whether Smith’s cooperation warranted a motion for downward departure. Smith does not suggest that any unconstitutional factor motivates the Government’s decision not to move for a downward departure or that hiswaiver of appellate rights was unknowing or involuntary. U nited States v. Garcia-No. 07-50597

3 Bonilla, 11 F.3d 45, 46-47 (5th Cir. 1993 ); United States v. Baymon, 312 F.3d 725, 729-30 (5th Cir. 2002). Accordingly, the waiver of appeal is valid and the APPEAL IS DISMISSED.