USA v. Ha, No. 05-21083 (5th Cir. 2006)
Annotate this Case
Download PDF
United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FILED FOR THE FIFTH CIRCUIT December 11, 2006 No. 05-21005 c/w 05-21083 Summary Calendar Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KHANH DUY HA, Defendant-Appellant. -------------------Appeal from the United States District Court for the Southern District of Texas USDC No. 4:03-CR-169-2 -------------------Before REAVLEY, WIENER and DENNIS, Circuit Judges. PER CURIAM:* Khanh Duy Ha appeals his guilty plea conviction and sentence for conspiracy to possess with intent to distribute methamphetamine and conspiracy to possess with intent to distribute ecstasy. Ha argues that the district court clearly erred in enhancing his offense level pursuant to U.S.S.G. § 2D1.1(b)(1) and that his guilty plea was rendered involuntary when the Government breached the plea agreement by failing to move for a U.S.S.G. § 5K1.1 departure. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-21005 c/w 05-21083 -2We first address Ha s breach argument, which we review de novo. 2000). See United States v. Saling, 205 F.3d 764, 766 (5th Cir. In Ha s plea agreement, the Government retained sole discretion to move for a § 5K1.1 departure, and Ha does not argue that the Government s refusal to do so was based on an unconstitutional motive. See United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir. 1993). Furthermore, the Government s conduct was not inconsistent with the parties reasonable understanding of the agreement. See United States v. Wilder, 15 F.3d 1292, 1295 (5th Cir. 1994). In light of the foregoing, Ha has not borne his burden of establishing by a preponderance of the evidence that the Government breached the plea agreement. See United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996). Ha s plea agreement contained an appeal waiver, which the Government seeks to enforce and which the record establishes was entered into knowingly and voluntarily. See United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). Therefore, Ha s challenge to the § 2D1.1(b)(1) enhancement is barred by his appeal waiver and is dismissed. See United States v. Melancon, 972 F.2d 566, 568 (5th Cir. 1992). DISMISSED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
