UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4586

JAMES B. STURDAVANT, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Terrence W. Boyle, Chief District Judge.
(CR-98-14)

Submitted: March 20, 2000

Decided: April 24, 2000

Before WIDENER, WILKINS, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James B. Ayers, II, New Bern, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, David J. Cortes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

James Sturdavant appeals the district court's denial of his motion
to compel the Government to file a motion for downward departure
pursuant to USSG § 5K1.1 (1998). For the reasons that follow, we
affirm his sentence.

In reviewing a claim that a plea agreement has been breached, we
review claims regarding what the parties said or did for clear error,
and review the application of the law to the facts de novo. See United
States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994). Sturdavant claims
on appeal that he was entitled to a § 5K1.1 motion because the
"[G]overnment announced in open Court that it would file the 5K1.1
motion and move the Court to depart modestly based upon the entry
of the plea." See Sturdavant's Brief, at 6. According to Sturdavant, the
Government breached the plea agreement when it "did not file the
motion as promised." See id.

Sturdavant bases his argument on the Government's statement,
prior to the preparation of the written plea agreement, that it would
agree to a downward departure based on Sturdavant's cooperation if
the prosecutor's supervising attorney agreed to such a promise. How-
ever, when the plea agreement was later reduced to writing, it
expressly disclaimed such a promise. (J.A. 60, ¶ 4d). Sturdavant
signed the written agreement and acknowledged at the plea hearing
that the Government had not promised to move for a departure. His
reliance on this court's holding in United States v. Conner, 930 F.2d
1073, 1075 (4th Cir. 1991), is therefore misplaced.

Moreover, although Sturdavant cites United States v. Maddox, 48
F.3d 791 (4th Cir. 1995), in support of his argument to overturn his
sentence, he fails to allege or argue that the Government's refusal to
file a § 5K1.1 motion was either based upon an unconstitutional
motive or was not rationally related to a legitimate Government
objective. See Maddox, 48 F.3d at 795. Therefore, his reliance on
Maddox is similarly misplaced.

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Accordingly, we affirm Sturdavant's sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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