UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5862

DAVID BARR,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-95-11)

Submitted: May 16, 1996

Decided: June 3, 1996

Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI, L.C., Wheeling,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

David Barr appeals the 37-month sentence he received after his
guilty plea to an information charging him with conspiring, between
July 1989 and May 1993, to possess with intent to distribute and to
distribute cocaine, 21 U.S.C.A. § 846 (West Supp. 1996). He main-
tains that the district court erred in determining his criminal history
and in denying him a downward departure for substantial assistance.
We affirm.

In March 1990, Barr was arrested and jailed for driving under the
influence. He had failed to appear on this charge in 1987. In April
1990, he entered a guilty plea and received an indeterminate sentence
of 48 hours to 6 months. Barr was given credit for the 47 days he had
served and was paroled. He remained on parole until September 9,
1990. The district court correctly awarded Barr two criminal history
points for this sentence under USSG § 4A1.1(b).* Although he served
only 47 days, the length of an indeterminate sentence is the stated
maximum; here, the stated maximum was 6 months. USSG§ 4A1.2,
comment. (n.2). Barr did not receive a suspended sentence, as he
maintains.

The district court did not clearly err in finding that Barr had com-
mitted a part of the instant offense while he was on parole, a finding
which added two criminal history points to his score. See USSG
§ 4A1.1(d). The instant offense includes any relevant conduct. USSG
§ 4A1.2, comment. (n.4). Barr argues that there was no evidence that
he committed any acts in furtherance of the conspiracy before his
parole ended on September 9, 1990. However, the district court found
that Barr's guilty plea to a conspiracy beginning in 1989 was an
admission of relevant conduct which occurred while he was still on
parole. In addition, the court noted information in the presentence
report from an informant who met Barr and a co-defendant in the
summer of 1990 and began purchasing cocaine from them. We find
that the court did not clearly err in making the factual determination
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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that Barr's participation in the conspiracy began while he was on
parole.

Finally, Barr contends that the district court should have awarded
him a substantial assistance departure even though the government
did not move for a departure under USSG § 5K1.1. Barr's plea agree-
ment did not promise a substantial assistance motion in return for his
substantial assistance; indeed, substantial assistance was not men-
tioned in the agreement. In this circumstance, a sentencing court may
not consider a departure based on the defendant's substantial assis-
tance except on motion by the government unless the government's
refusal to file the motion is based on an unconstitutional motive or is
not rationally related to any legitimate governmental objective. Wade
v. United States, 504 U.S. 181, 185-86 (1992). Barr claims bad faith
on the part of the government. However, in the district court, he sim-
ply argued that he rendered substantial assistance, a claim the govern-
ment disputed. Even if Barr's assistance was substantial, he is not
entitled to relief without more. Wade, 504 U.S. at 187.

We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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