UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5721

DARRIUS LAMONT WALKER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5743

ERNEST JUNIOR MASSEY, a/k/a 18,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, District Judge, sitting by designation.
(CR-95-5)

Submitted: June 28, 1996

Decided: July 12, 1996

Before LUTTIG and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Mauricio Dominguez, Martin McCracken, Charlotte, North Carolina,
for Appellants. Mark T. Calloway, United States Attorney, Gretchen
C. F. Shappert, 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Unpublished opinions are not binding precedent in this circuit.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:

Darrius Lamont Walker and Ernest Junior Massey pled guilty to
conspiracy to possess with intent to distribute and distribution of a
quantity of cocaine and cocaine base within 1000 feet of a school or
playground in violation of 21 U.S.C.A. § 846 (West Supp. 1996).
Both Walker's and Massey's plea agreements contain provisions
relating to assistance to the Government. The agreements provide that
"the Government, in its sole discretion, shall determine" whether
assistance by the Defendants was substantial. The agreements also
provide, "[u]pon a determination that the defendant has rendered sub-
stantial assistance the government shall make a motion for a down-
ward departure pursuant to § 5K1.1 of the Sentencing Guidelines or
Federal Rule of Criminal Procedure 35 as appropriate."

The plea agreements also contain two waiver provisions. First, the
agreements provide that "the Defendant knowingly and expressly
waives the right to contest either the conviction or the sentence," pro-
vided that the sentence does not exceed the maximum guideline
range, with the exception of allegations of ineffective assistance or
prosecutorial misconduct. The second waiver provision applies to
substantial assistance. It provides that "[a]ny determination by the
United States that the defendant has failed to provide substantial
assistance or has knowingly provided false information is within the

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sole discretion of the United States, and the defendant waives all
objections and rights of appeal based upon such a determination."

At both Walker's and Massey's sentencing hearing, the attorney for
the Government said that she would not move for downward depar-
ture. The Defendants' counsel attempted to present evidence of the
Defendants' assistance, but the district court judge refused to receive
the evidence.

A waiver of appeal provision in a valid plea agreement is enforce-
able if it is the result of a knowing and intelligent decision to relin-
quish the right to appeal. United States v. Attar, 38 F.3d 727, 731 (4th
Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3817 (U.S. May
15, 1995) (No. 94-1409); United States v. Wiggins, 905 F. 2d 51, 53
(4th Cir. 1990). The Defendants do not contend that their waivers
were not knowing and intelligent.

This court has stated that a general waiver of appeal rights does not
bar appeal of claims such as a sentence impermissibly based on race
or in excess of the statutory maximum, United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992), or proceedings following the guilty
plea conducted in violation of the Sixth Amendment right to counsel.
Attar, 38 F.3d at 732-33. We have held that such waivers do apply
to bar appeals based on improper application of the sentencing guide-
lines or a violation of a procedural rule. Marin , 961 F.2d at 496. The
Defendants do not claim that their sentences were based on race or
any other impermissible factor. Consequently, the waivers are valid
and enforceable.

Walker and Massey further contend that the district court's refusal
to allow them to present evidence of their assistance to the Govern-
ment and their right to a USSG § 5K1.1 motion is a post-plea viola-
tion of their constitutional due process rights. When post-plea
proceedings are conducted in violation of the defendant's constitu-
tional rights, the plea agreement cannot waive the right to challenge
the sentence based upon those constitutional grounds. Marin, 961
F.2d at 496.

Section eighteen of the plea agreements clearly reserves to the
Government the sole discretion to decide whether to file a motion for

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a downward departure based upon substantial assistance. The Govern-
ment did not breach the plea agreement by failing to move for a
reduction because no enforceable obligation was created in the plea
agreement. United States v. Wallace, 22 F.3d 84, 87 (4th Cir.), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3266 (U.S. Oct. 4, 1994) (No. 94-
5653). Because the decision to make the downward departure motion
is within the sole discretion of the government, the decision is not
reviewable unless the government based its decision upon an uncon-
stitutional factor, such as race. See Wade v. United States, 504 U.S.
181, 185-87 (1992). There is no evidence that the Government's
refusal to move for a departure was based on an unconstitutional
motive, and the Defendants do not make such an allegation.

We therefore dismiss the appeals. 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.

DISMISSED

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