                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4720



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHNNY LEE FELDER, a/k/a Cool Daddy,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-03-283)


Submitted:   July 19, 2006             Decided:   September 11, 2006


Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnny Lee Felder pled guilty to one count of armed

robbery and one count of felon in possession of a firearm, in

violation of 18 U.S.C. §§ 2, 922(g)(1), 924(e), 1951(a) (2000),

pursuant to a written plea agreement.     Felder was sentenced to a

total term of imprisonment of 480 months.      Felder has appealed,

raising several issues related to his sentence.     We affirm.

            Felder first contends the district court erred in denying

his motion for specific performance of the plea agreement, by which

he sought to compel the Government to request a downward departure

pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (2002).    The

decision to file a § 5K1.1 motion is solely within the Government’s

discretion.    United States v. Butler, 272 F.3d 683, 686 (4th Cir.

2001).    Therefore, unless the Government has obligated itself in a

plea agreement to file a substantial assistance motion, its refusal

to do so is not reviewable unless based on an unconstitutional

motive.    Wade v. United States, 504 U.S. 181, 185-86 (1992).

            The plea agreement provided that the Government would

file a § 5K1.1 motion if Felder “cooperate[d] pursuant to the

provisions of [the] Plea Agreement, and that cooperation [was]

deemed by Attorneys for the Government as providing substantial

assistance . . . .”    Under the agreement, Felder was required “to

be fully truthful and forthright” with the Government regarding his

knowledge of, among other crimes, armed robberies and homicides.


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To test his truthfulness, Felder agreed to not only submit to

polygraph examinations but also to pass them “to the Government’s

satisfaction.”       If he failed to pass a polygraph examination, the

Government reserved the right to declare its obligations under the

plea     agreement     “null    and    void.”    Felder   failed     a    polygraph

examination       regarding     information      provided    about    a   case   of

interest, and the Government refused to file a § 5K1.1 motion.

             Felder argues the polygraph provision was unconscionable

as   a   matter   of   law     and   therefore   evidences    the    Government’s

unconstitutional motive for refusing to file a § 5K1.1 motion. The

Government, however, asserts it did not file a § 5K1.1 motion

because Felder failed to substantially assist in its investigation

of the only case of interest, namely a grocery store armed robbery

and murder. Because the Government retained its discretion to file

a § 5K1.1 motion, and Felder has failed to establish that the

Government’s refusal to file was based on an unconstitutional

motive, we conclude the district court did not err in denying

Felder’s motion for specific performance of the plea agreement.

             Next, Felder contends the district court erred in denying

his motion to require a higher burden of proof at sentencing.

Felder asserts he should have been sentenced only on those facts

admitted to or proven beyond a reasonable doubt.                However, after

United States v. Booker, 543 U.S. 220 (2005), sentencing courts are

still required to calculate and consider the guideline range


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prescribed thereby as well as the factors set forth in 18 U.S.C.

§ 3553(a) (2000).     United States v. Hughes, 401 F.3d 540, 546 (4th

Cir. 2005).     Further, we have previously noted that sentencing

factors should continue to be evaluated based on the preponderance

of the evidence.      United States v. Morris, 429 F.3d 65, 72 (4th

Cir. 2005).     As Felder’s sentence was imposed post-Booker, the

district court’s use of a preponderance of the evidence standard

was proper.

          Felder also contends the district court’s application of

the   murder   cross-reference     was    improper     in     light    of    the

inconsistent testimony presented during the sentencing hearing.

When reviewing the district court’s application of the Sentencing

Guidelines,    we   review   findings    of   fact   for    clear    error   and

questions of law de novo.       United States v. Green, 436 F.3d 449,

456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).                       After

reviewing the materials on appeal, including the district court’s

lengthy summation of the evidence and analysis, we find no error in

the district court’s application of the murder cross-reference.

          Finally, Felder contends the district court erred by

failing to rule on disputed matters in the revised presentence

report as required by Fed. R. Crim. P. 32(i)(3)(B).                 However, in

denying Felder’s motion to strike the revised presentence report,

the court repeatedly stated that it would base its decision on the

testimony and evidence presented during the sentencing hearing


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rather than on the summaries presented in the presentence report.

Further, the court made clear that any information included in the

report, but not presented during the sentencing hearing, would be

given “very limited weight.”   Therefore, we conclude the district

court complied with Rule 32.

          Accordingly, we affirm Felder’s sentence.    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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