UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4456

MICHAEL CROWDER,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-96-4-V)

Submitted: May 12, 1998

Decided: July 28, 1998

Before ERVIN, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Bruce Park, GOODMAN, CARR, NIXON, LAUGHRUN &
LEVINE, P.A., Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Frank D. Whitney, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Appellant Michael Crowder was convicted pursuant to his guilty
plea of one count of possession with intent to distribute cocaine base
and aiding and abetting in the same in violation of 21 U.S.C. § 841
(1994). Crowder's counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), challenging whether the Govern-
ment should have made a motion for downward departure pursuant to
USSG § 5K1.1* based on Crowder's alleged substantial assistance.
Finding no error, we affirm.

After his arrest, Crowder signed a plea agreement and cooperated
with the Government. The agreement provided that the Government,
in its sole discretion, could move for a downward departure if it deter-
mined that Crowder substantially assisted in its investigation. In addi-
tion, Crowder agreed that if he violated any federal, state, or local law
or any condition of his pre-trial release, the Government was relieved
of any obligations under the agreement. Crowder tested positive for
marijuana four separate times and was arrested for speeding, driving
without a license, and assaulting a deputy while on pre-trial release.
At sentencing, the Government stated that Crowder's assistance was
not substantial because his misconduct had a negative effect on his
credibility and rendered him ineffective as a witness. Accordingly, the
Government did not move for a downward departure.

We find that Crowder's appeal fails for three reasons. First, Crow-
der expressly waived his right to appeal his conviction and sentence
in the plea agreement, except for claims of ineffective assistance of
counsel or prosecutorial misconduct. Crowder does not raise either of
these issues, and our review of the record does not disclose any basis
for such claims. In addition, the record clearly shows that Crowder
breached the terms of the plea agreement when he tested positive for
marijuana use and was arrested by local authorities. This discharged
the Government from any obligation to file a motion for downward
departure. Finally, even if there were no waiver or breach, the agree-
_________________________________________________________________

*U.S. Sentencing Guidelines Manual (1995).

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ment expressly stated that the Government had the option of whether
or not to make a § 5K1.1 motion. Since the Government did not base
its decision on unconstitutional reasons, the district court lacked the
authority to force the Government to make such a motion or to depart
downward sua sponte. See Wade v. United States, 504 U.S. 181, 185
(1992); United States v. Maddox, 48 F.3d 791, 795 (4th Cir. 1995).

We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

We therefore affirm Crowder's conviction and sentence. We dis-
pense 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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