United States v. Bieganowski ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50859
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR J. BIEGANOWSKI, J.D.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. EP-98-CR-959-2
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Victor J. Bieganowski pleaded guilty to an indictment
charging him with conspiring to commit mail fraud. Bieganowski
has appealed, arguing that the Government breached the plea
bargain by refusing to move for a downward departure pursuant to
U.S.S.G. § 5K1.1. Because the Government retained sole
discretion, its refusal to move for a downward departure is
reviewable for an unconstitutional motive only. See Wade v.
United States, 504 U.S. 181, 185-86 (1992).
Bieganowski does not contend that the Government's refusal
to move for a downward departure was based upon an
*
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this opinion should not be published and is not precedent except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. 00-50859
-2-
unconstitutional motive. Instead, Bieganowski argues that the
record shows that the Government never intended to move for a
downward departure and that its reasons for refusing to offer the
motion were insubstantial. These issues are not reviewable.
See United States v. Urbani, 967 F.2d 106, 110 (5th Cir. 1992).
The judgment is AFFIRMED.