                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 01-4608
RODRICK DAJAUNA DULA, a/k/a
Rodrick Duane Dula,
              Defendant-Appellant.
                                       
UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                 No. 01-7091
RODRICK DAJAUNA DULA, a/k/a
Rodrick Duane Dula,
              Defendant-Appellant.
                                       
           Appeals from the United States District Court
     for the Western District of North Carolina, at Statesville.
              Richard L. Voorhees, District Judge.
                 (CR-98-282-V, CA-00-188-5-1)

                      Submitted: April 19, 2002

                       Decided: May 3, 2002

   Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.



No. 01-4608 affirmed and No. 01-7091 dismissed by unpublished per
curiam opinion.
2                      UNITED STATES v. DULA
                             COUNSEL

Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North
Carolina, for Appellant; Rodrick Dajauna Dula, Appellant Pro Se.
Robert J. Conrad, Jr., United States Attorney, Brian Lee Whisler,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                             OPINION

PER CURIAM:

   In No. 01-4608, Rodrick Dajauna Dula appeals his conviction for
conspiracy to possess with intent to distribute, and distribution of,
cocaine base, in violation of 21 U.S.C.A. § 846 (West 1999), and his
sentence of 188 months’ imprisonment. In No. 01-7091, Dula appeals
the district court’s order granting in part and denying in part his 28
U.S.C.A. § 2255 (West Supp. 2001) motion. With respect to No. 01-
4608, we affirm Dula’s conviction and sentence. With respect to No.
01-7091, we deny a certificate of appealability and dismiss the appeal.

   Following a Federal Rule of Criminal Procedure 11 hearing, the
district court accepted Dula’s plea of guilty to conspiracy to possess
with intent to distribute cocaine base. The Government declined to
move for a departure from the Guidelines under U.S. Sentencing
Guidelines Manual § 5K1.1 (2000). The district court denied Dula’s
motion for departure under U.S.S.G. § 5K2.0 and sentenced him to
the minimum term of imprisonment, as calculated under the Sentenc-
ing Guidelines, of 188 months, supervised release for five years, and
a special assessment of $100.

   Dula filed a motion pursuant to 28 U.S.C.A. § 2255, asserting
claims of ineffective assistance of counsel and violation of Apprendi
                       UNITED STATES v. DULA                         3
v. New Jersey, 530 U.S. 466 (2000). The Government filed a motion
for summary judgment. The district court granted in part and denied
in part Dula’s § 2255 motion and the Government’s motion for sum-
mary judgment, dismissing all of Dula’s claims except for his ineffec-
tive assistance of counsel claim based upon his counsel’s failure to
file an appeal. The district court then vacated the criminal judgment
and entered a new judgment with the same sentence and conditions
from which Dula could file a direct appeal. Dula noted timely appeals
both from his conviction and sentence and from the district court’s
judgment as to his § 2255 motion.

   In the appellate brief prepared by counsel in No. 01-4608, Dula
contends that the Government breached its agreement to file a motion
for downward departure pursuant to U.S.S.G. § 5K1.1 after prevent-
ing him from providing additional information which could have
amounted to substantial assistance. Dula’s plea agreement, however,
contained no unconditional promise to file a motion for downward
departure but instead left the decision to the Government’s discretion.
Dula makes no claim that the Government’s refusal to grant a down-
ward departure was based upon an unconstitutional motive. See Wade
v. United States, 504 U.S. 181, 185-86 (1992); United States v. Wal-
lace, 22 F.3d 84, 87 (4th Cir. 1994). Furthermore, the Government
presented objective support for its decision to withhold the § 5K1.1
motion, and Dula has failed to demonstrate that the Government acted
in bad faith. See United States v. Snow, 234 F.3d 187, 190-91 (4th
Cir. 2000). Accordingly, we hold that the district court did not err in
concluding that the Government did not breach the plea agreement.
Therefore, we affirm Dula’s conviction and sentence in No. 01-4608.

   In No. 01-7091, Dula argues that the district court erred by par-
tially dismissing his § 2255 motion, contending that his sentence vio-
lates Apprendi and that his counsel was ineffective in regard to his
guilty plea. We have reviewed the record and the district court’s opin-
ion and find no reversible error. Accordingly, we deny a certificate of
appealability and dismiss Dula’s appeal of the denial of his § 2255
motion in No. 01-7091 on the reasoning of the district court. See
United States v. Dula, Nos. CR-98-282; CA-00-188-5-1 (W.D.N.C.
May 31, 2001).
4                      UNITED STATES v. DULA
   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                         No. 01-4608 - AFFIRMED

                                         No. 01-7091 - DISMISSED
