IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10075 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM JOSEPH LEE RICHEY,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:94-CR-70-A(1) - - - - - - - - - - November 21, 1995 Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

This is an appeal from the judgment of conviction and

sentence, and the district court's order denying specific

performance of the plea agreement. Appellant argues that the

Government did not reserve to itself the "sole" discretion to

determine whether he had provided substantial assistance and

alternatively that the Government's refusal to file the § 5K1.1

motion was based on an improper motive. We have reviewed the

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-10075 -2-

record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. United States v. Richey, No. 4:94-CR-70-A(1) (N.D. Tex.

Jan. 20, 1995).

Richey also argues for the first time on appeal that the

district court erred in attributing to him the entire amount of

losses arising out of the fraudulent telemarketing scheme and the

entire amount of the bogus tax refunds generated in the

fraudulent tax return scheme. The calculation of the amount of

loss is a factual finding. United States. v. Wimbish,

(5th Cir. 1992), cert. denied,

(1993).

"[Q]uestions of fact capable of resolution by the district court

upon proper objection at sentencing can never constitute plain

error." United States v. Guerrero,

(5th Cir.

1993), cert. denied,

(1994) (citation omitted).

AFFIRMED.