                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 JUNE 15 2007
                                No. 06-14879                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 05-00135-CR-J-20MMH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

MARCELLUS MATSON,
a.k.a. Pee Wee,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                 (June 15, 2007)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     The district court sentenced appellant on a plea of guilty to a prison term of
188 months for distribution of more than five grams of cocaine base, in violation of

21 U.S.C. §§ 841(a). He now appeals his sentence. He presents the following

grounds: (1) that the district court committed plain error at the sentencing hearing

by receiving into evidence certain exhibits offered by the Government; (2) the

court erred in finding appellant eligible for career offender status; (3) the court

denied appellant his rights under the Fifth and Sixth Amendments by using his

prior convictions to enhance his sentence as a career offender because the

convictions were not alleged in the indictment and established by a jury; and (4)

the Government breached its promise to move the court for a downward departure

under U.S.S.G. § 5K1.1. We consider these grounds in order.

      The first ground is meritless. The Government introduced a DEA report,

exhibit 1, which indicated that appellant had allegedly solicited a murder, and a

signed plea agreement, exhibit 4, that was not entered into in open court.

Appellant did not question the exhibits’ authenticity, but contends that the exhibits

were irrelevant. We conclude that they were relevant and sufficiently reliable to

enable the court to consider them under U.S.S.G. § 6A1.3(a). The court could

consider the exhibits because the information they contained related to the

sentencing factors set out in 18 U.S.C. § 3553(a) and the applicable Sentencing

Guidelines. The Government referred to the DEA report in explaining why it did



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not file a § 5K1.1 motion, and to the plea agreement to shed light on appellant’s

understanding of any promises he thought the Government had made to induce his

guilty plea. In short, we find no abuse of discretion in the court’s consideration of

the exhibits.

      The gist of appellant’s second ground is two-fold: the court (1) failed to

obtain appellant’s “waiver” to its application of the career offender enhancement,

and (2) impermissibly treated the career offender enhancement as mandatory.

There is nothing in the record to support either point. Appellant made no objection

to the existence of the prior convictions the court considered, and cites no authority

that barred the court from taking them into account in fashioning his sentence.

      As to appellant’s third ground, the record reveals no constitutional challenge

(by appellant) to the sentence he received. We therefore review his argument for

plain error. See United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005). We

find no error, much less error that is plain. His argument therefore fails.

      We find no merit in appellant’s fourth ground – the Government’s failure to

seek a § 5K1.1 departure. The filing of a § 5K1.1 motion is a matter of

prosecutorial discretion. Nonetheless, the court may inquire of the prosecutor in

order to determine whether the Government’s decision not to seek a departure is

based on an unconstitutional motive. Wade v. United States, 504 U.S. 181, 112



                                           3
S.Ct. 1840, 118 L.Ed.2d 524 (1992). Absent a finding that the withholding is

based on such motive, the court proceeds no further. Here, appellant did not

contend that the Government’s decision was unconstitutionally motivated. His

fourth ground therefore fails.

      AFFIRMED.




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