United States v. Stuart ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50074
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD ALLAN STUART, also known as
Dick Stuart, also known as
R.A. Stuart,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-95-CR-50-6
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April 10, 1998
Before JOLLY, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:*
Appellant Richard Allan Stuart appeals his sentence for
conspiracy to commit bank fraud. He argues that this court
should consider his appeal despite the waiver-of-appeal provision
in his plea agreement, that the Government breached the plea
agreement, and that his case should be remanded for resentencing
because his sentence is unconstitutionally excessive and the
court failed to inform him of his right to appeal. Further,
*
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that this opinion should not be published and is not precedent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. 97-50074
-2-
Stuart argues that the district court erred: 1) in calculating
the loss valuation under U.S.S.G. § 2F1.1; and 2) using the 1995
Sentencing Guidelines to determine his sentence.
Stuart has waived his right to appeal his sentence on the
grounds raised with the exception of his claim that the
Government breached his plea agreement and that the court did not
inform him of his right to appeal. See United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994).
Stuart argues that since the Government did not file a motion
for downward departure pursuant to U.S.S.G. § 5K1.1, despite his
substantial assistance, it breached the plea agreement. Under
the plea agreement the Government retained full discretion over
the decision whether to file a motion for downward departure.
United States v. Price, 95 F.3d 364 (5th Cir. 1996). As Stuart
has not shown that the Government’s discretionary decision was
based on an unconstitutional motive, see Wade v. United States,
504 U.S. 181 (1992), he cannot prevail on his claim for breach.
Stuart also asserts that his case should be remanded because
he was not informed of his right to appeal pursuant to Fed.
R. Crim. P. 32(c)(5). Inasmuch as the record clearly indicates
that the court informed Stuart of his right to appeal,
notwithstanding the provisions in his plea agreement, this
argument is also without merit.
AFFIRMED.