UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 96-4820
JAMES ELDRIDGE, a/k/a Milton E.
Morris,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-38)

Submitted: October 31, 1997

Decided: November 21, 1997

Before MURNAGHAN, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis H. Lang, CALLISON, TIGHE, ROBINSON & HAWKINS,
L.L.P., Columbia, South Carolina, for Appellant. J. Rene Josey,
United States Attorney, William E. Day, II, Assistant United States
Attorney, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

James Eldridge pled guilty to conspiracy to defraud by using unau-
thorized access devices affecting interstate commerce, in violation of
18 U.S.C. § 1029(a)(2) (1994). Following sentencing, Eldridge
moved to enforce his plea agreement, alleging that the Government
breached its agreement to recommend non-prosecution for similar,
previously-committed offenses. The district court denied Eldridge's
motion. We affirm.

The plea agreement between Eldridge and the Government bound
Eldridge to be fully truthful and forthright with investigators pursuing
credit card cases and to submit to a polygraph examination. In return,
the Government agreed to recommend to other federal, state, and
local authorities that Eldridge not be prosecuted for credit card
offenses committed before his arrest on the charges to which he pled
guilty. The agreement specifically provided that if Eldridge failed to
comply with any term of the agreement, the obligations of the Gov-
ernment attorneys under the agreement would be null and void.

The Government scheduled polygraph examinations after
Eldridge's sentencing, but Eldridge refused to submit to the examina-
tions. Consequently, the Government has not, to this date, recom-
mended non-prosecution to other authorities. During the district
court's hearing on Eldridge's motion, the Government stated that it
was ready to abide by its agreement to recommend non-prosecution
upon Eldridge's taking, and passing, a polygraph examination.

This appeal is governed by this court's opinion in United States v.
Martin, 25 F.3d 211, 216-17 (4th Cir. 1994): Judicial interpretations
of plea agreements are guided by the law of contracts. Breaches of
agreements must be proven by a preponderance of the evidence. A
party alleging a breach must establish that he provided the degree of
assistance bargained for in the agreement. Our review is de novo.

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We find that Eldridge has not fulfilled a material condition prece-
dent to the Government's recommending non-prosecution: he has not
submitted to, and passed, a polygraph examination. Eldridge contends
that the Government should have asked him to take a polygraph
examination prior to sentencing, and that the Government's failure to
perform this portion of the plea agreement before sentencing should
excuse his failure to submit to an examination. However, the plea
agreement places no time limits on the Government's scheduling
polygraph examinations. Eldridge may yet obtain the benefit of his
bargain, but he must first take and pass the examination. The Govern-
ment has not breached the agreement. Accordingly, we affirm. We
deny as moot Eldridge's motion for an expedited appeal. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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