IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40131 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRONDRICK MACK, also known as Boo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CR-31-10 -------------------- October 30, 2002 Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Brondrick Mack appeals his sentence arguing that the

Government breached the plea agreement by failing to file a

motion for downward departure pursuant to § 5K1.1 of the

sentencing guidelines. Although Mack contends that the

Government did not reserve its discretion to file a motion for

sentence reduction when it entered into this agreement, a plain

reading of the agreement shows that the Government retained the

sole discretion to file a motion even if Mack cooperated. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40131 -2-

United States v. Garcia-Bonilla,

(5th Cir. 1993).

When the Government retains its discretion to file the motion for

sentence reduction, “a defendant who provides substantial

assistance without receiving a downward departure is not entitled

`to a remedy or even to discovery or an evidentiary hearing’

unless the prosecution relied on an unconstitutional motive" in

refusing to file the motion.

at 46 (quoting Wade v. United

States,

(1992). Mack does not ascribe any

unconstitutional motives to the Government. Accordingly, Mack’s

sentence is AFFIRMED.