IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50333 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GARRY DAN WILLS, also known as Gary Wills, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CR-64-6 -------------------- October 15, 2001

Before JOLLY, JONES and DENNIS, Circuit Judges.

PER CURIAM:*

Relying on Apprendi v. New Jersey**, Garry Dan Wills argues

that the failure to allege a drug quantity in the superseding

information charging him with possession with intent to

distribute methamphetamine should have resulted in his being

sentenced based only on the quantity of drugs stated in the

factual basis supporting his guilty plea.

Wills’ 48-month sentence and three-year term of supervised

release did not exceed the maximum statutory penalty for an

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(2000). No. 01-50333 -2-

offense involving less than 5 grams of methamphetamine, and,

thus, Wills is not entitled to have the case dismissed or to be

resentenced. See

(b)(1)(C); United States v.

Doggett,

(5th Cir. 2000), cert. denied,

(2001).

Wills argues that the information in the presentence report

did not have the indicia of reliability necessary to support the

sentence imposed by the district court. The Government moves to

dismiss Wills’ challenge to his sentence, arguing that he waived

his right to appeal his sentence in his plea agreement.

Before accepting Wills’ guilty plea, the district court

addressed Wills and determined that he understood and accepted

the waiver-of-appeal provision in his plea agreement. See Fed.

R. Crim. P. 11(c)(6); United States v. Robinson,

(5th Cir. 1999). Because the record reflects that Wills

knowingly and voluntarily waived his right to appeal his

sentence, he is bound by the waiver and cannot challenge his

sentence on appeal. See United States v. Melancon,

(5th Cir. 1992). The Government’s motion to dismiss this

appeal as it relates to Wills’ challenges to his sentence is

GRANTED.

Wills’ argument that the Government breached the plea

agreement by failing to file a motion for downward departure is

without merit because the Government retained the discretion to

file the motion, and Wills has not alleged that the failure to

file the motion was the result of an unconstitutional motive on No. 01-50333 -3-

the Government’s part. See Wade v. United States,

(1992). Wills’ conviction and sentence are AFFIRMED.