UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4627

DAVID LAVAL MOORE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-96-66-MU, CR-96-124)

Submitted: August 15, 2000

Decided: September 18, 2000

Before WILKINS and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James F. Wyatt, III, Robert A. Blake, Jr., LAW OFFICES OF JAMES
F. WYATT, III, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, North 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Unpublished opinions are not binding precedent in this circuit.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:

David Laval Moore pled guilty without the benefit of a plea agree-
ment to one count of possession with intent to distribute cocaine in
violation of 21 U.S.C.A. § 841(a)(1) (West 1999), one count of pos-
session with intent to distribute cocaine base and aiding and abetting
same in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C. § 2
(1994), and one count of conspiracy to possess with intent to distrib-
ute cocaine and cocaine base within 1000 feet of a protected area in
violation of 21 U.S.C.A. §§ 841(a)(1), 846, 851 & 860 (West 1999).
On appeal, Moore claims that the district court erred at sentencing by
refusing to consider a downward departure from the sentencing guide-
lines range based upon his substantial assistance absent a motion from
the Government. Moore also claims that the amount of drugs attri-
buted to him for sentencing purposes was erroneously determined in
violation of 18 U.S.C. § 201(c)(2)(1994). According to Moore, the
district court erred by relying on individuals who gave statements to
the Government in exchange for sentencing and prosecution consider-
ations. Finding no reversible error, we affirm.*

We have held that a downward departure based upon substantial
assistance under U.S. Sentencing Guidelines Manual § 5K1.1 (1997),
requires a Government motion, see United States v. Schaefer, 120
F.3d 505, 508 (4th Cir. 1997), unless the court finds that the Govern-
ment's refusal to file the motion "(1) is based on an unconstitutional
motive; or (2) is not rationally related to a legitimate government
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*We have considered the effect of Apprendi v. New Jersey, 530 U.S.
___, 68 U.S.L.W. 4576 (June 26, 2000), and find that, because Moore
received a sentence of imprisonment and a term of supervised release
that did not exceed the statutory maximums set out in 21 U.S.C.A.
§ 841(b)(1)(C) (West Supp. 1999), no plain error occurred. See United
States v. Aguayo-Delgado, ___ F.3d ___, 2000 WL 988128, at *6 (8th
Cir. July 18, 2000).

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objective." United States v. Maddox, 48 F.3d 791, 795 (4th Cir.
1995). Moore's argument is without merit because he does not dem-
onstrate that the exceptions apply. Because the Government did not
file a motion for a downward departure, the district court did not err.

This court has rejected the claim that the Government violates
§ 201(c)(2) by granting immunity or leniency or entering into plea
agreements to obtain testimony. Accordingly, Moore's second claim
is rejected. See United States v. Richardson, 195 F.3d 192, 197 (4th
Cir. 1999), cert. denied, ___ U.S. ___, 68 U.S.L.W. 3431 (U.S. Jan.
10, 2000) (No. 99-7186).

We affirm the convictions and sentences. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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