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opinion should not be published and is not precedent except under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