(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-2530
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN DE LOS SANTOS-VILLARREAL,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(CR-H-91-132-13)
February 25, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
BACKGROUND
Juan De Los Santos-Villarreal was charged in four counts of a
28-count indictment with various drug and money-laundering
offenses. Pursuant to a plea agreement, De Los Santos-Villarreal
entered guilty pleas to two counts, and the remaining two counts

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were dismissed by the court. The plea agreement included
provisions concerning the Government's willingness to recommend a
grant of acceptance of responsibility and that it would also file
a § 5K1.1 motion for downward departure should De Los Santos-
Villarreal provide substantial assistance.
During the sentencing hearing, De Los Santos-Villarreal
indicated that he thought he was pleading guilty to counts which
would result in a 5-year term of imprisonment; he conceded that
during the Rule 11 proceeding, he did not indicate to the court
that anyone had promised him that he would receive such a sentence.
At that time, the Government indicated that it did not intend to
file the motion for § 5K1.1 departure. The Government continued
that, although the possibility of a § 5K1 departure motion was
included in the plea agreement, it was not satisfied that De Los
Santos-Villarreal was cooperating or that he was being candid
during the debriefing. De Los Santos-Villarreal raised no
objection to the Government's intention not to file a § 5K1 motion
during the proceeding.
Based on the Presentence Report's (PSR) recommended total
offense level of 24 and a criminal history category of I, the court
imposed concurrent sentences of 120 and 63 months and concurrent
supervised release terms of 5 and 3 years on counts 6 and 8,
respectively. PSR ¶¶ 74, 80, 81.
OPINION
De Los Santos-Villarreal asserts that the Government breached
the plea agreement by not filing a § 5K1.1 motion for downward

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departure. He contends that the Government should be required to
recommend the departure because its promise to file the motion
induced him to plead guilty. De Los Santos-Villarreal argues that
he was willing to testify before the grand jury or at trial but
that he was never called. He argues that the Government should
have advised him that it did not believe he was being candid and
therefore would not recommend that he was eligible for the § 5K1.1
motion.
The Government argues that De Los Santos-Villarreal
waived his right to appellate review of this issue because he did
not raise it before the district court. Alternatively, the
Government argues that De Los Santos-Villarreal failed to make a
threshold showing that its refusal to file a § 5K1.1 motion was
attributed to an unconstitutional motive. Instead, the Government
contends that De Los Santos-Villarreal is not entitled to relief
because he did not provide candid and substantial assistance.
The plea agreement provided in pertinent part:
Further, I agree to cooperate in good faith with the
Government by providing truthful and complete information
concerning this and all other offense[s] about which I
might be questioned by agents of law enforcement.
. . .
Upon fulfillment of this promise to cooperate fully,
completely and truthfully, the Government may, in its
sole discretion, file a motion with the Court
recommending departure under § 5K1.1 from the application
of the Sentencing Guidelines in the Court's assessment of
my punishment. The Government alone will decide if any
assistance I provide is "substantial assistance." If the
Government believes I have provided substantial
assistance; it will ask the Court to sentence me to not
more than 130 months in prison.

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. . .
I understand that neither my attorney or the
attorney for the United States will determine what my
sentence will be. If I have fulfilled my agreement as
set out above, the United States Attorney at his sole
discretion, will recommend the Court sentence me below
the recommended range provided by the U.S. Sentencing
Guidelines.
"[T]he condition limiting the court's authority [under
both 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1] gives the Government
a power, not a duty, to file a motion when a defendant has
substantially assisted." Wade v. United States, ___ U.S. ___, 112
S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992). District courts
should review a prosecutor's decision not to file a § 5K1.1 motion
only if the refusal was based on an unconstitutional motive such as
race or religion. Id. at 1843-44.
If a guilty plea is entered as part of a plea agreement, the
Government must strictly adhere to the terms and conditions of its
promises. United States v. Kerdachi, 756 F.2d 349, 351-52 (5th
Cir. 1985). When a guilty plea "rests in any significant degree on
a promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be
fulfilled." Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct.
495, 30 L. Ed. 2d 427 (1971). The measure of compliance is the
expressed terms of the agreement. United States v. Cates, 952 F.2d
149, 152-53 (5th Cir.), cert. denied, 112 S. Ct. 2319 (1992).
To determine whether the Government breached the plea
agreement, the Court must determine whether the Government's
conduct is consistent with the defendant's reasonable understanding
of the agreement. United States v. Huddleston, 929 F.2d 1030, 1032

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(5th Cir. 1991). De Los Santos-Villarreal's counsel acknowledged,
without objection, that De Los Santos-Villarreal would not get the
benefits of a § 5K1.1 motion. Because De Los Santos-Villarreal did
not object, the plain error standard applies. United States v.
Lopez, 923 F.2d 47, 49 (5th Cir. 1991). At that time, the court
proceeded to question the Government about its reasons for not
filing the motion. The following colloquy took place:
THE COURT: Was it part of a plea agreement that if he
cooperated, that a 5K would be filed?
MR. MCCORMICK: Yes, sir, if he provided substantial
assistance to the Government.
THE COURT: Was it the Government's position that he did
not, or was it that you had all the evidence that you
could receive from the others?
MR. MCCORMICK: It was our position that he did not
provide substantial assistance, Your
Honor. The plea agreement addresses that. . . .
. . .
Mr. MCCORMICK: In our sole discretion, if we felt that
he had provided substantial assistance. Following the
debriefing of this individual, we were not satisfied
based on the debriefing of others and the cooperating
witnesses we had before any of the pleas were taken. I
communicated to Counsel that his client was not, in my
opinion, cooperating and being candid and forthcoming in
the debriefing. ..., and there never was a change in the
defendant's position.
THE COURT: All right. And, as I recollect, he did not
testify?
Mr. MCCORMICK: That's correct, he did not.
In our view the language of the plea agreement is clear an
unambiguous that it was within the government's "sole discretion"
as to whether De Los Santos-Villarreal's cooperation constituted

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"substantial assistance" and as to whether the government would
file "a motion recommending departure under § 5K1.1. The rationale
in Wade was applied to a case involving a plea agreement, United
States v. Urbani, 967 F.2d 106 (5th Cir. 1992), and the court
upheld the provision in the agreement which stated that the
"defendant's cooperation does not automatically require the
Government to request a departure from the sentencing guidelines
for substantial assistance." 967 F.2d at 107 n.2, 108-10. In
light of Wade and Urbani, De Los Santos-Villarreal is not entitled
to specific performance of the plea agreement as he not only failed
to raise in the district court an objection to the Government's
decision not to file the §5K1.1 motion, but on appeal, he does not
allege an unconstitutional reason for the failure to file the
motion. The Government stated that De Los Santos-Villarreal's
cooperation was limited and not, in its opinion, deserving of a §
5K1.1 motion. There was no plain error.
Judgment of the trial court is AFFIRMED.

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