                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4295



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


THOMAS TYSINGER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CR-02-10135)


Submitted:   October 6, 2004             Decided:   November 15, 2004


Before LUTTIG, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles L. Bledsoe, BLEDSOE LAW OFFICE, P.C., Big Stone Gap,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
R. Lucas Hobbs, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Thomas Tysinger was convicted pursuant to a written plea

agreement of conspiracy to possess with intent to distribute and

distribute in excess of 500 grams of powder cocaine, in violation

of 21 U.S.C. §§ 841(a)(1) and 846 (2000).          He was sentenced to 120

months in prison.      We affirm.

           On appeal, Tysinger first argues that the district court

erred in denying his motion to dismiss the indictment.             We review

the district court’s ruling de novo. See United States v. Brandon,

298 F.3d 307, 310 (4th Cir. 2002).          After thoroughly reviewing the

record, we conclude that Tysinger was never promised, orally or

otherwise, that he would not be prosecuted in the Western District

of Virginia for his drug crimes if he cooperated with officials in

Florida.   Moreover, Tysinger does not assert that he was given

statutory immunity by the Government. See 18 U.S.C.A. §§ 6001-6005

(West 2000 & Supp. 2004).       Thus, we hold that the district court

did not err in denying his motion to dismiss the indictment.

           Next, Tysinger argues that the district court erred in

not   granting   his   motion   for   a     downward   departure   based   on

substantial assistance and that the Government violated his rights

by not filing such a motion.          We find that this claim is also

without merit.    Tysinger does not contest that the written plea

agreement he entered prohibited his right to file a motion for a

downward departure.       Moreover, we find that the plea agreement


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expressly gave the Government sole discretion over whether to file

such   a   motion    and   that   Tysinger     failed   to   show   that    the

Government’s decision not to file was based on an unconstitutional

motive (such as race) or was not rationally related to a legitimate

government end. United States v. Butler, 272 F.3d 683, 686-87 (4th

Cir.   2001).       In   addition,   the     record   reflects   that,     after

authorities notified Tysinger that he needed to turn himself in

because of charges pending in the Western District of Virginia, he

fled for approximately three weeks, putting the Government through

the time and expense of tracking him down and arresting him in the

Midwest.    Given these facts, we cannot conclude that there was no

rational basis for the Government’s decision not to file a downward

departure motion on Tysinger’s behalf.

            For the forgoing reasons, we affirm the judgment of

conviction.     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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