                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4560



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


MARVIN DARRELL GUEST, a/k/a Rail,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:03-cr-00126-SB)


Submitted:   June 26, 2008                 Decided:   July 14, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Joseph Condon, Jr., CONDON LAW FIRM, North Charleston, South
Carolina, for Appellant. Kevin F. McDonald, Acting United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Marvin Darrell Guest pled guilty in 2003 to conspiracy to

commit bank fraud and was sentenced to a term of sixty months

imprisonment and three years of supervised release.                  He appeals

this       sentence,1   contending   that    he   was   improperly    denied    a

departure for substantial assistance, U.S. Sentencing Guidelines

Manual § 5K1.1, p.s. (2002), and a hearing on the issue.                       We

affirm.

               Guest’s plea agreement provided that the government would

move for a departure if his cooperation was deemed substantial by

the government.          At his sentencing hearing, Guest’s attorney

acknowledged that his client had been interviewed, but that the

results of his cooperation were as yet unknown, and for that reason

the government would not move for a departure.                  Both defense

counsel and the government held out hope for a later motion for

sentence reduction.2



       1
      The district court granted Guest a late appeal under United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), after he filed a
motion to vacate pursuant to 28 U.S.C.A. § 2255 (2000). The court
held Guest’s other claims in abeyance pending this appeal.
Although Guest has completed his prison term, we retain
jurisdiction because he remains on supervised release.
       2
      The government ultimately decided that Guest’s assistance was
not substantial, and did not move pursuant to Fed. R. Crim. P.
35(b) for a reduction based on substantial assistance.        Guest
alleged in his § 2255 motion that the government’s decision not to
move for a sentence reduction was arbitrary or made in bad faith.
Because this issue is pending before the district court, we do not
address it.

                                     - 2 -
           Unless the government is obligated under the terms of a

plea agreement, its decision as to whether the defendant has

provided substantial assistance is discretionary. United States v.

Snow, 234 F.3d 187, 190 (4th Cir. 2000).    Guest’s plea agreement

leaves the discretion to determine whether he provided substantial

assistance warranting a § 5K1.1 departure with the government.

Guest did not object at sentencing to the government’s decision not

to make a § 5K1.1 motion, and the record does not disclose any

evidence that the government refused to make the motion based on

any unconstitutional motive.   See Wade v. United States, 504 U.S.

181, 185-86 (1992) (holding that “federal district courts have

authority to review a prosecutor’s refusal to file a substantial

assistance motion and to grant a remedy if they find that the

refusal was based on an unconstitutional motive.”). Further, Guest

has not shown that the government’s decision at sentencing was “not

rationally related to any legitimate Government end.”   Id. at 186

(internal citation omitted).

           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 argument would not aid the decisional process.



                                                           AFFIRMED




                               - 3 -
