IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40514 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISMELDO VENTURA-GUTIERREZ,

Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas (M-95-CV-330)

January 23, 1998 Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

Ismeldo Ventura-Gutierrez, federal prisoner #65009-079,

appeals from the district court’s denial of his motion to vacate,

set aside, or correct his sentence pursuant to

.

He avers that the government breached the plea agreement by failing

to file a motion for downward departure pursuant to U.S.S.G. §

* 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 5K1.1 and that his counsel was ineffective in recommending he plead

guilty. Ventura-Gutierrez also avers, for the first time in his

reply brief, that the district court erred in refusing to hold an

evidentiary hearing. We have reviewed the record and find no

error. Accordingly, the judgment is AFFIRMED for essentially the

same reasons adopted by the district court. See United States v.

Ventura-Gutierrez, No. M-95-CV-330 (S.D. Tex. March 31, 1997).

AFFIRMED1

1 Ventura-Gutierrez’s motion for appointment of counsel is denied.

2