UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4732

DAVID DANIELS, a/k/a Three,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-97-22)

Submitted: June 22, 1999

Decided: July 13, 1999

Before WILLIAMS, MOTZ, and KING,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Frank A. Mika, Waynesboro, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

David Daniels pled guilty to conspiracy to distribute crack cocaine,
see 21 U.S.C. § 846 (1994), and received a sentence of 240 months
imprisonment.1 Daniels appeals the district court's denial of his
motion to withdraw his guilty plea and its decision that it lacked
authority to depart below the guideline range pursuant to U.S. Sen-
tencing Guidelines Manual § 5K2.0, p.s. (1997), or to inquire into the
government's decision not to move for a departure pursuant to USSG
§ 5K1.1, p.s. He also challenges the constitutionality of the federal
sentencing guidelines, statutory minimum sentences, and § 5K1.1. We
affirm.

In his plea agreement, Daniels stipulated that he was responsible
for 150-500 grams of crack. The agreement provided that Daniels had
a prior felony drug conviction and was subject to an enhanced sen-
tence. For the stipulated amount of crack, the mandatory sentence was
240 months. See 21 U.S.C.A. § 841(b)(1)(A) (West 1981 & Supp.
1999). The agreement also provided that Daniels would have the
opportunity to cooperate and that the government would determine in
its discretion whether Daniels' cooperation had been substantial and
whether it would move for a departure under 18 U.S.C.A. § 3553(e)
(West Supp. 1999) or § 5K1.1. Daniels' guideline range was 151-188
months, but the twenty-year statutory minimum sentence under 21
U.S.C.A. § 841(b)(1)(A) increased the guideline range to 240 months.
See USSG § 5G1.1(b).

Although Daniels was interviewed after his guilty plea, the govern-
ment did not consider his cooperation substantial, at least in part
because his previous deception would have made him a problematic
witness. Six months after his guilty plea, on the day he was scheduled
to be sentenced, Daniels orally moved to withdraw his plea. He stated
that he had been presented with the plea agreement five minutes
before the Fed. R. Crim. P. 11 hearing and had not fully understood
_________________________________________________________________
1 Daniels' true name is John Samuel Judd III. His identity was revealed
through a fingerprint check done by the Federal Bureau of Investigation
before he entered his guilty plea.

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the plea colloquy or the significance of his plea. After continuing sen-
tencing to review the transcript of the Rule 11 hearing, the district
court denied Daniels' motion to withdraw his guilty plea.

When sentencing resumed at a later hearing, Daniels' attorney
requested a departure under § 5K2.0, arguing that his client's being
subject to a twenty-year mandatory sentence because of a prior drug
conviction at age seventeen was a factor not considered by the Sen-
tencing Commission, or under § 5K1.1, for substantial assistance. The
district court held that § 5K2.0 did not give it authority to depart
below a statutory minimum sentence and that, without a motion from
the government, it lacked authority to depart for substantial assis-
tance. The court imposed the mandatory 240-month sentence.

We consider first the district court's denial of Daniels' motion to
withdraw his guilty plea. The decision to grant a motion to withdraw
a guilty plea is reviewed for abuse of discretion. See United States v.
Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). The factors to be consid-
ered are (1) whether the defendant has offered credible evidence that
his guilty plea was not knowing or voluntary; (2) whether the defen-
dant has credibly asserted his legal innocence; (3) whether there has
been a delay between the entering of the plea and the filing of the
motion; (4) whether the defendant has had close assistance of compe-
tent counsel; (5) whether withdrawal will cause prejudice to the gov-
ernment; and (6) whether it will inconvenience the court and waste
judicial resources. Id. Prejudice to the government is not considered
until the defendant establishes a fair and just reason for withdrawing
the plea. See United States v. Haley, 784 F.2d 1218, 1219 (4th Cir.
1986).

Daniels did not assert his innocence and he waited over six months
after entering his guilty plea before he moved to withdraw it. He
asserted, in effect, that his plea was not knowing or voluntary; how-
ever, Daniels answered affirmatively all the questions designed to
make sure that he understood what he was doing and the conse-
quences of his guilty plea. He did not ask for more time to consider
the agreement. He did not allege that his attorney had failed to keep
him informed about the plea negotiations or had been otherwise defi-
cient in representing him. Therefore, we find that the district court did

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not abuse its discretion in denying Daniels' motion to withdraw his
guilty plea.

Daniels next contends that the Sentencing Commission failed to
take into account that a defendant might receive an enhanced sentence
for a conviction sustained as a juvenile and that the district court had
authority to depart below the guideline range and the statutory mini-
mum sentence under USSG § 5K2.0. Because the district court's deci-
sion not to depart was based on its belief that it lacked authority to
depart, the issue is reviewable on appeal. See United States v. Brock,
108 F.3d 31, 33 (4th Cir. 1997). A sentencing court may not depart
below a mandatory minimum sentence unless the government moves
for such a departure based on substantial assistance, see 18 U.S.C.A.
§ 3553(e) (West Supp. 1999),2 or under the safety valve provision, see
18 U.S.C.A. § 3553(f). Neither avenue was available to the district
court in this case. Consequently, the district court did not err in find-
ing that it lacked authority to depart under § 5K2.0.

Daniels' contention that the district court could have departed
under USSG § 5K1.1 because he provided substantial assistance is
also without merit. If the government has not obligated itself to move
for a substantial assistance departure under the terms of the plea
agreement, the district court may not depart for substantial assistance
or inquire into the government's decision not to move for a departure
unless the defendant has made a "substantial threshold showing" that
the government's decision was based on an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 185-86 (1992). Daniels claims
that the government entered into the plea agreement with an unconsti-
tutional motive--to deprive him of a jury trial by convincing him to
try to earn a substantial assistance motion which was never a possibil-
ity because the government knew at the time that Daniels had lied
about his identity and would not make a reliable witness. However,
Daniels did not offer any evidence of unconstitutional motive on the
part of the government in the district court and the court held that
there had been "no indication whatever" of bad faith. We find that
Daniels did not make the substantial threshold showing necessary to
_________________________________________________________________
2 A motion pursuant to § 5K1.1 alone does not permit the court to
depart below a mandatory minimum sentence. See Melendez v. United
States, 518 U.S. 120, 124 (1996).

                    4
warrant judicial inquiry into the government's decision not to move
for a departure. Lacking the motion, the district court did not have
authority to consider a departure.

Finally, Daniels raises two issues for the first time on appeal. Both
are necessarily reviewed under the plain error standard. See United
States v. Olano, 507 U.S. 725, 732 (1993) (when issue unpreserved,
appellant must show that an error occurred which was plain, affected
his substantial rights, and must be corrected to preserve fairness,
integrity, or public reputation of judiciary). Daniels first contends that
§ 5K1.1 usurps judicial powers relative to sentencing by giving unbri-
dled authority to the prosecutor. The constitutionality of the guide-
lines as a whole has been upheld by the Supreme Court. See Mistretta
v. United States, 488 U.S. 361 (1989). Consequently, the district court
did not commit plain error in failing to find § 5K1.1 unconstitutional.
Daniels also claims that the sentencing guidelines and mandatory
minimum sentences violate the separation of powers doctrine in that
legislative action has reduced judicial powers. Again, under Mistretta,
we find no plain error. In addition, this court has held that § 5K1.1
does not violate the separation of powers doctrine. See United States
v. Francois, 889 F.2d 1341, 1345 (4th Cir. 1989). Moreover, manda-
tory minimum sentences do not violate the doctrine of separation of
powers. See United States v. Hammer, 3 F.3d 266, 269 (8th Cir. 1993)
(citing Chapman v. United States, 500 U.S. 453, 467 (1991)); United
States v. Kinsey, 83 F.2d 383, 393 (9th Cir. 1988).

We therefore affirm the conviction and 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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