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.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. MO-95-CR-50-6 - - - - - - - - - -

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(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,

(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.