IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40164
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY DUANE PRYOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:00-CR-37-1
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March 27, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Tracy Duane Pryor appeals his guilty-plea conviction for
possession with intent to distribute methamphetamine and his
sentence. He argues that the waiver-of-appeal provision in his
plea agreement is not enforceable because the magistrate judge and
district court did not advise him of the waiver provision, and
instead advised him that he could appeal any aspect of his
sentence. Although the Government summarized the terms of the plea
agreement, including the waiver provision, at the rearraignment
*
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that this opinion should not be published and is not precedent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.
No. 01-40164
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hearing, the magistrate judge did not advise Pryor that he was
waiving his right to appeal and advised him that he or the
Government may have the right to appeal the sentence imposed.
Because the magistrate judge did not advise Pryor of the waiver-of-
appeal provision, the waiver is not enforceable. See United States
v. Robinson, 187 F.3d 516, 518 (5th Cir. 1999).
Pryor argues that his guilty plea was not knowing and
voluntary because the magistrate judge did not advise him that he
was agreeing to provide substantial assistance to the Government in
return for a reduction in his sentence from the 121-151 month
sentencing range to the 120-month statutory minimum sentence. The
record indicates that Pryor was advised of the statutory minimum
and maximum sentences for the offense and that his guilty plea was
voluntary and not the result of promises or threats outside of the
plea agreement. Rule 11 of the Federal Rules of Criminal Procedure
did not require the magistrate judge to advise Pryor further that
if he provided substantial assistance, his sentence could only be
reduced to 120 months.
Pryor argues that the Government breached the plea agreement
by not filing a motion pursuant to 18 U.S.C. § 3553(e) which would
have allowed the district court to impose a sentence below the
statutory minimum sentence. Because Pryor did not raise this
argument in the district court, review is limited to plain error.
See United States v. Branam, 231 F.3d 931, 933 (5th Cir. 2000). The
plea agreement provided that the Government may file a motion for
a downward departure under either U.S.S.G. § 5K1.1 motion or Rule
35 of the Federal Rules of Criminal Procedure. The plea agreement
No. 01-40164
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did not provide or require that the Government file a motion for a
downward departure under 18 U.S.C. § 3553(e). The Government
complied with the plea agreement by filing a U.S.S.G. § 5K1.1
motion, and did not breach the plea agreement by failing to file a
motion under 18 U.S.C. § 3553(e).
AFFIRMED.