United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 03-51215
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE E. PHILLIPS, also known as Big Willie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CR-395-1
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Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Willie E. Phillips, federal prisoner # 31582-180, appeals
the sentence imposed following his guilty-plea conviction for
conspiracy to manufacture and distribute cocaine base and
conspiracy to launder money. Phillips argues that the Government
engaged in prosecutorial vindictiveness and breached the terms of
his plea agreement by failing to file a motion for a downward
departure. He contends that the district court should have
enforced this provision or allowed him to withdraw his guilty
*
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this opinion should not be published and is not precedent except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. 03-51215
-2-
plea. Phillips also asserts that his sentence is
unconstitutional under the Sixth Amendment in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004).
We review de novo the district court’s determination whether
the Government breached a plea agreement. United States v.
Price, 95 F.3d 364, 367 (5th Cir. 1996). The defendant bears the
burden of establishing a breach. Id. As part of the plea
agreement, the Government retained the “sole discretion” to
determine whether to file a motion for a downward departure on
Phillips’s behalf. Phillips concedes that this court has held
that when the Government retains discretion whether to file a
motion for a downward departure its decision is reviewable only
to determine whether the Government acted pursuant to an
unconstitutional motive. However, he argues, citing law from
other circuits, that this court should expand its review of such
decisions to include whether the Government acted in bad faith in
deciding not to move for a downward departure.
Because the Government retained its discretion to determine
whether to move for a downward departure and Phillips has not
ascribed any unconstitutional motive to this decision, we are
bound by our prior decisions in United States v. Aderholt, 87
F.3d 740, 741-42 (5th Cir. 1996), and Price to hold that he has
not established a breach of the plea agreement and is not
entitled to relief on this issue.
No. 03-51215
-3-
Phillips’s claim of sentencing error under the Sixth
Amendment is barred by the waiver-of-appeal provision in his plea
agreement. See United States v. McKinney, 406 F.3d 744, 746-47
(5th Cir. 2005).
AFFIRMED.