
    UNITED STATES of America, Plaintiff-Appellee, v. KHANH DUY HA, Defendant-Appellant.
    Nos. 05-21005, 05-21083
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    Dec. 11, 2006.
    James Lee Turner, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Chris Flood, Flood & Flood, Houston, TX, for Defendant-Appellant.
    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. § 2Dl.l(b)(l) 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.

We first address Ha’s breach argument, which we review de novo. See United States v. Saling, 205 F.3d 764, 766 (5th Cir.2000). 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. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     