IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41547 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANK GUILLORY,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CR-23-1 - - - - - - - - - -

September 17, 1998

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Frank Guillory appeals the denial of his motion for specific

performance of his plea agreement with the State of Texas. He

was convicted under

(g)(1) for possession of a

firearm by a convicted felon, an incident arising out of the same

events as his state prosecution for attempted capital murder and

hindering apprehension. He argues that the federal government is

acting as the alter ego of the state government in this

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-41547 -2-

prosecution and that as a result the indictment should be

dismissed.

On appeal from the denial of a motion for specific

performance of a plea agreement, this court reviews the district

court’s factual findings under a “clearly erroneous” standard.

United States v. Williams,

, modified on other

grounds,

(5th Cir. 1987). The trial court made

several findings of fact to support its denial. The federal

prosecutors decided to pursue the case against the defendant for

a distinct offense. This decision was based primarily upon

contact with the victim. No federal agent participated in the

state plea negotiations. The parties to the state plea agreement

had agreed that all state prosecutions would be dismissed, but

they admitted that they did not consider or discuss federal

prosecutions. The defendant was not assured that he would not be

prosecuted under the federal law.

Upon a review of the record, the briefs, and the applicable

law, we hold that the factual findings of the trial court are not

clearly erroneous and that the denial of the motion for specific

performance of the plea agreement was not error. The judgment of

the district court is therefore AFFIRMED.