United States v. Bieganowski

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-50859
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50859 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VICTOR J. BIEGANOWSKI, J.D.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. EP-98-CR-959-2 -------------------- August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

Victor J. Bieganowski pleaded guilty to an indictment

charging him with conspiring to commit mail fraud. Bieganowski

has appealed, arguing that the Government breached the plea

bargain by refusing to move for a downward departure pursuant to

U.S.S.G. § 5K1.1. Because the Government retained sole

discretion, its refusal to move for a downward departure is

reviewable for an unconstitutional motive only. See Wade v.

United States, 504 U.S. 181, 185-86 (1992).

Bieganowski does not contend that the Government's refusal

to move for a downward departure was based upon 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50859 -2-

unconstitutional motive. Instead, Bieganowski argues that the

record shows that the Government never intended to move for a

downward departure and that its reasons for refusing to offer the

motion were insubstantial. These issues are not reviewable.

See United States v. Urbani, 967 F.2d 106, 110 (5th Cir. 1992).

The judgment is AFFIRMED.