UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 97-4272

THOMAS BROCK FREDERICK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-96-59-R)

Submitted: February 17, 1998

Decided: March 16, 1998

Before ERVIN and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William P. Robinson, Jr., ROBINSON, SHELTON & ANDERSON,
Norfolk, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Anthony P. Giorno, Assistant United States Attorney, Roa-
noke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Thomas Brock Frederick pled guilty to conspiracy to possess with
intent to distribute cocaine, MDMA (ecstacy), lysergic acid diethyla-
mide (LSD), and methamphetamine in violation of 21 U.S.C. § 846
(1994). He appeals his sentence of eighty months imprisonment, con-
tending that the government breached the plea agreement by refusing
to move for a downward departure for substantial assistance under
USSG § 5K1.1, p.s.* Finding that the government did not breach the
agreement, we affirm Frederick's sentence.

Frederick's written plea agreement did not mention substantial
assistance. However, at the Fed. R. Crim. P. 11 hearing, his attorney
and the government informed the district court that they had reached
an oral agreement "that in the event [Frederick] does provide substan-
tial assistance, and [the government] agrees, that the government will
. . . take the appropriate position." The district court asked Frederick
if he understood that it would be "the government's call as to whether
the motion will be made" and further stressed that "it's strictly in their
hands to make that motion." Frederick said he understood.

At the sentencing hearing, the government declined to move for a
substantial assistance departure and introduced evidence from two
federal agents concerning the nature and quality of Frederick's assis-
tance. Frederick also testified. His attorney then acknowledged that
the government had total discretion to decide whether to move for a
departure. He asked for a sentence at the low end of the guideline
range. The court commented that Frederick "did something that could
have matured into substantial assistance. It didn't mature into substan-
tial assistance. That seems to be the end of the matter."
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*U.S. Sentencing Guidelines Manual (1995).

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On appeal, Frederick argues that he provided substantial assistance
to the government and was entitled to a departure motion. However,
under Wade v. United States, 504 U.S. 181, 186 (1992), a sentencing
court may consider a departure for substantial assistance without a
government motion only if the defendant first makes a substantial
threshold showing that the government's refusal to make the motion
results from a breach of the plea agreement or from an unconstitu-
tional motive. Our review of the record below discloses that the oral
agreement gave the government full discretion to determine whether
Frederick's assistance had been substantial. Therefore, the govern-
ment's decision not to move for a departure did not breach the agree-
ment. Frederick has not alleged any unconstitutional motive.

Accordingly, we affirm the sentence imposed. 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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