UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5337

ARMON O'NEAL BEAVERS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5338

LARRY THOMAS WILLIAMS,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Abingdon.
Samuel G. Wilson, District Judge.
(CR-92-46)

Argued: March 5, 1996

Decided: April 8, 1996

Before RUSSELL and WIDENER, Circuit Judges, and
CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Birg Eugene Sergent, Pennington Gap, Virginia, for
Appellant Beavers; Dennis Eugene Jones, Lebanon, Virginia, for
Appellant Williams. Julie C. Dudley, Assistant United States Attor-
ney, Roanoke, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Armon O'Neal Beavers and Larry Thomas Williams
entered into plea agreements with the United States Attorney for the
Western District of Virginia. Williams pled guilty to Count 1 in the
indictment which charged conspiracy to distribute or to possess with
intent to distribute cocaine. Beavers' plea was to conspiracy to dis-
tribute or possess with intent to distribute and possession of an unreg-
istered firearms silencer in violation of 26 U.S.C.§§ 5861(d) and
5871. Beavers was sentenced to serve 135 months on Count 1 and
120 months on Count 2 with the sentences to run concurrently. The
government filed a motion for a downward departure as to Williams
based upon his substantial assistance. The district court sentenced him
to 100 months and took under advisement the downward departure
motion. Later the court reduced this sentence to 48 months.

Both defendants appealed to this court claiming that the prosecutor
violated their respective plea agreements by failing to make the
required sentencing recommendations. In an unpublished opinion
filed January 18, 1995, this court vacated both sentences and
remanded for resentencing, because we found that the prosecutor
neglected to recommend to the district court that Beavers be sen-
tenced at the low end of the guideline range as required by his plea

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agreement. As to Williams, the prosecutor recommended the district
court sentence Williams at the low end of the guideline range but did
not recommend to the district court that Williams receive a sentence
of 24 months as required by his plea agreement.

At the resentencing hearing held on April 24, 1995, Beavers was
resentenced to 108 months and Williams sentenced to 48 months.
Each defendant appeals claiming that the government still has not
lived up to its commitments under the plea agreements. Beavers con-
tends that he bargained in good faith for a substantial assistance
reduction and complied with it so far as he was able. Williams con-
tends that the government only partially lived up to the agreement
because the prosecutor did not make the sentencing court aware of the
value of the information given by Williams.

We find no merit in either appeal, and we affirm both sentences.

I.

Beavers contends that he provided substantial assistance by advis-
ing the government of the location of a boat and property which was
forfeited to the government. He contends that he was never given the
opportunity to provide further information and was thereby denied his
right to provide substantial assistance to the government as provided
by the plea agreement. This claim is totally lacking in merit. We
stated in the prior opinion, "We have reviewed the record and find
that the prosecutor did not violate the plea agreement in this respect,
because Beavers had not provided substantial assistance." The forfei-
ture of the boat and the property was not substantial assistance
because it was required by the plea agreement. As to his claim that
he was never debriefed by federal agents, he admitted to the district
court at his resentencing that he had not volunteered any information
to the government and had made no attempt to contact the govern-
ment or to let the government know what information he had that it
could use.

The government lived up to its side of the bargain. Beavers was
allowed to plead guilty to only two of a ten count indictment. He
received a stipulation as to the drug weight, that he was not a leader
or organizer, that he was entitled to a three level credit for acceptance

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of responsibility and that he be sentenced at the low end of the guide-
lines. He was given the opportunity to provide substantial assistance.
This opportunity does not place an obligation upon the government
to debrief him or to seek out information. He is the one seeking the
downward departure, and he has the obligation to provide the infor-
mation. At the resentencing in April 1995, he was again given this
opportunity and nothing of value was forthcoming. There was no
breach of the agreement by the government in this respect.

II.

Williams argues that the government breached its plea agreement
at the resentencing by failing to advise the court of the full nature and
extent of his assistance so the court could determine the appropriate
downward departure. He asserts that the prosecutor was not suffi-
ciently enthusiastic in making the motion.

Williams relies upon United States v. Brown, 500 F.2d 375 (4th
Cir. 1974), but Brown is not applicable to the present facts. In Brown
a prosecutor, other than the one who made the plea agreement,
attended the sentencing hearing and made remarks indicating his res-
ervations about the agreement to which the government had commit-
ted itself. In the present case, the prosecutor did everything that the
agreement required of him. This case is governed by United States v.
Benchimol, 471 U.S. 453 (1985), which holds that unless the govern-
ment in the plea agreement binds itself to "enthusiastically" recom-
mend to the sentencing court or to explain to the court its reasons for
making the recommendation, there is no obligation on the part of the
government to do so.

If a defendant wants enthusiasm from the prosecutor, this is some-
thing to be bargained for and included in the agreement.

Williams' guideline range was 100 to 125 months, and as a result
of the government's motion, this was reduced to 48 months. The sen-
tencing judge understood the government's motion for a downward
departure to 24 months, but the court specifically found that Wil-
liams' substantial criminal record persuaded the court that a reduction
of 24 months was not warranted.

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III.

Both appellants contend that when these cases were remanded for
resentencing, we should have directed that a different district judge
conduct the resentencing, and assert that Santobello v. New York, 404
U.S. 257 (1971) and United States v. Peglegra , 33 F.3d 412 (4th Cir.
1994) require a different judge. Such action is not required on the
present facts. In Santobello and Peglegra, the prosecutor made rec-
ommendations directly contrary to the terms of the plea agreements
at the sentencing hearings. But, in the present cases we found that the
prosecutor had inadvertently neglected to recommend that Beavers be
sentenced at the low end of the guidelines and that Williams receive
a 24 month sentence. There has been no finding that the prosecutor
violated either plea agreement and the cases were not remanded on
this basis, so it was unnecessary to bring in a new judge.

For the reasons stated above, the sentences of both appellants are

AFFIRMED.

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