                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 05-5127



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

             versus


TIMOTHY XAVIER PADEN,

                                                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-04-1066)


Submitted:    August 23, 2006                 Decided:   November 9, 2006


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant.      Reginald I. Lloyd, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Timothy Xavier Paden pled guilty, pursuant to a written

plea agreement, to conspiracy to possess with intent to distribute

and to distribute 500 grams or more of cocaine and fifty grams or

more of crack cocaine, in violation of 21 U.S.C. § 846 (2000), and

was sentenced to 240 months of imprisonment.                    Paden appeals,

asserting      that   the   district   court    erred   in   finding   that   the

Government did not breach the plea agreement by failing to move for

a   downward     departure    under    U.S.    Sentencing    Guidelines   Manual

(“USSG”) § 5K1.1, p.s. (2004), and to withdraw the notice provided

pursuant to 21 U.S.C. § 851 (2000).             We affirm.

               Paden claims on appeal that the Government refused to

honor    its    obligations    under    the    plea   agreement    because    the

Government believed that he breached the plea agreement by lying to

law enforcement officers during a murder investigation and by

failing a polygraph test. Even if a breach occurred, Paden asserts

that it was not material.          This court reviews for clear error a

district court’s decision not to compel the Government to file a

§ 5K1.1 motion.       United States v. Snow, 234 F.3d 187, 189 (4th Cir.

2000); United States v. Conner, 930 F.2d 1073, 1076 (4th Cir.

1991).

               Paden’s plea agreement clearly stated that the decision

whether to move for a departure based on substantial assistance lay

within the sole discretion of the Government.                The plea agreement


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also provided that, if Paden failed a polygraph examination, then

the Government’s obligation to move for a downward departure under

USSG § 5K1.1 would be null and void.   Because Paden violated the

terms of his plea agreement by failing to pass a polygraph test to

the Government’s satisfaction, the district court concluded that

Paden breached the terms of the plea agreement.   Accordingly, the

district court refused to compel the Government to file a § 5K1.1

motion.   We find that the district court did not clearly err in

refusing to compel the Government to move for a downward departure

and affirm for the reasons stated by the district court.

          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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