* 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should not be published and is not precedent except under the limited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. 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 of fifty grams or more

of cocaine 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 to file 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

Clerk
No. 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

departure on the basis that Smith had not yetfully 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. United

States v. Keresztury, 293 F.3d 750, 757 (5th Cir. 2002). 

Whether the Government has violated a plea agreement is a question of

law subject to de novo review. United States v. 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 of the agreement. Id. The defendant

must prove by a preponderance of the evidence that the Government breached

the agreement. Id. 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. United

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 his waiver

of appellate rights was unknowing or involuntary. United 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.