UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4625

TYRONE MOULTRIE, a/k/a Tizzy,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4634

TYRONE MOULTRIE, a/k/a Tizzy,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-95-615, CR-96-464)

Submitted: August 18, 1998

Decided: September 11, 1998

Before MURNAGHAN, ERVIN, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Robert H. Bickerton, Assistant United States Attorney, Charleston,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Tyrone Moultrie pled guilty to possession of crack cocaine and
marijuana with intent to distribute, 21 U.S.C.A.§ 841 (West 1981 &
Supp. 1998) (six counts), and, under a separate indictment, pled guilty
to one count of conspiracy to possess crack cocaine with intent to dis-
tribute, 21 U.S.C. § 846 (1994). The district court imposed a sentence
of 226 months imprisonment. Moultrie's attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
several issues but stating that in her view there are no meritorious
issues for appeal. Moultrie has filed a pro se supplemental brief rais-
ing two additional issues. After a review of the record, we affirm.

In a series of monitored transactions, Moultrie sold crack to a con-
fidential informant on five occasions in May and June of 1993, and
sold marijuana to the confidential informant on one occasion. During
the May 27 marijuana transaction, Moultrie received money from the
confidential informant in front of his home, went inside to retrieve the
marijuana, and returned with both marijuana and a 9 mm handgun
covered by a towel. The confidential informant was startled by the
appearance of a firearm, but asked whether it was for sale, examined
it, and then left. A search warrant was executed at Moultrie's home
on June 11, 1993. From his bedroom, authorities recovered a 9 mm
handgun, a rifle, marijuana, cocaine, and $400.

In April 1996, Moultrie failed a polygraph examination concerning
his knowledge of a murder believed to be drug-related.1 He then left
_________________________________________________________________
1 The victim had been shot to death, possibly because she was believed
to be an informant.

                    2
the premises to confer with his attorney and never returned to take a
second polygraph examination concerning information he had pro-
vided about drug trafficking in the area. Moultrie's August 1996 plea
agreement made no mention of a possible departure for substantial
assistance. The agreement obligated him to provide truthful informa-
tion about his drug trafficking and other unlawful activities of which
he might have knowledge, and to submit to a polygraph examination
if requested. The agreement also provided that modification must be
"in writing signed by all parties." Before he was sentenced, Moultrie
failed a second polygraph test, which was administered by state
authorities, concerning the murder.

At his sentencing hearing, Moultrie sought a downward departure
under USSG § 5K1.1, p.s.,2 asserting that he had provided substantial
assistance by giving information about drug trafficking. He also
alleged that, after he entered his guilty plea, the plea agreement had
been orally modified by a government promise to move for a down-
ward departure if he passed a polygraph examination. Because poly-
graph evidence is not admissible in a trial, Moultrie argued that his
failure to pass the April 1996 polygraph examination was an unconsti-
tutional reason for denying him a substantial assistance motion.

The government attorney agreed that Moultrie had cooperated with
regard to drug activity, and said he would have requested approval to
file a substantial assistance motion had Moultrie passed a polygraph
test or otherwise disclosed truthfully whatever he knew about the
murder. He denied making any promises which were not included in
the plea agreement. The district court found that the government had
not made a commitment to file a substantial assistance motion based
solely on the polygraph test, and that in any case denial of the motion
because of failure to pass a polygraph test would not be an unconstitu-
tional motive. Moultrie also unsuccessfully contested the recom-
mended enhancement for possession of a firearm during the offense,
see USSG § 2D1.1(b)(1), on the ground that the firearm was not used
in the drug transaction.

In the Anders brief, defense counsel suggests that the district court
erred (1) in finding that the plea agreement was not modified to prom-
_________________________________________________________________
2 U.S. Sentencing Guidelines Manual (1995).

                    3
ise a substantial assistance motion, (2) in finding that a refusal to file
the motion based on a failure to pass a polygraph test would not be
unconstitutional, (3) in denying Moultrie's motion for a substantial
assistance departure, and (4) in making the two-level enhancement for
possession of a dangerous weapon during a drug offense.

We find no error in the district court's determinations. A district
court may consider a departure for substantial assistance without a
government motion only if the defendant makes a substantial thresh-
old showing that the government's refusal to make the motion results
from a breach of the plea agreement, from an unconstitutional motive
such as religious or racial bias, or based on a factor not rationally
related to any legitimate government end. See Wade v. United States,
504 U.S. 181, 186 (1992). Moultrie conceded at sentencing that his
guilty plea had not been induced by a promise for a substantial assis-
tance motion and that the government had not breached the plea
agreement. There was no evidence of any written modification to the
plea agreement following Moultrie's plea. The government refuted
defense counsel's claim of an oral modification, which in any case
would have been unenforceable. See United States v. Fentress, 792
F.2d 461, 464 (4th Cir. 1986) (fully integrated agreement may not be
supplemented with unmentioned terms). The record discloses that the
government decided against a USSG § 5K1.1 motion because it
believed that Moultrie had not truthfully revealed all he knew about
a murder which was believed to be drug related. In making this deci-
sion, the government was free to weigh Moultrie's apparently untruth-
ful answers on two polygraph examinations even though such
information would be inadmissible at trial.

We review the district court's determination that Moultrie pos-
sessed the firearm during the offense for clear error. See United States
v. Falesbork, 5 F.3d 715, 720 (4th Cir. 1993)."[P]ossession of the
weapon during the commission of the offense is all that is needed to
invoke the enhancement." United States v. Apple, 962 F.2d 335, 338
(4th Cir. 1992). The enhancement is required unless it is clearly
improbable that the weapon is connected to the offense. See USSG
§ 2D1.1, comment. (n.3). Although Moultrie's attempt to sell the
handgun to the informant was separate from the drug sale, he
undoubtedly possessed the gun during the drug transaction. Moultrie
made no showing which would have enabled the district court to find

                     4
that it was clearly improbable that his possession of the firearm was
unconnected to his drug trafficking. Therefore, the court's finding
was not clearly erroneous.3

In a pro se supplemental brief, Moultrie argues that the district
court should have departed downward because crack and powder
cocaine are chemically indistinguishable. We have previously rejected
this view. See United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir.
1995). Finally, Moultrie maintains that he was entitled to a downward
departure for substantial assistance. As explained above, under Wade,
the government was not obligated to move for a departure and the dis-
trict court could not consider a departure without a government
motion because there was no showing that the government's refusal
to request a departure resulted from any unconstitutional motive.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tions and sentence. This court requires that counsel inform her client,
in writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.

AFFIRMED
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3 Moreover, the "offense" is defined as the offense of conviction and all
relevant conduct. See USSG § 1B1.1 (n.1(l)); Falesbork, 5 F.3d at 720.
Two firearms, cocaine, and marijuana were found in Moultrie's home
when it was searched two weeks later on the same day that he again sold
crack to an informant.

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