                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4846



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


OSCAR A. SMITH, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-04-300)


Submitted:   June 9, 2006                     Decided:   July 3, 2006


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Van Lloyd, Savannah, Georgia, for Appellant.     Jonathan S.
Gasser, United States Attorney, Carlton R. Bourne, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Oscar A. Smith, Jr., pled guilty to conspiracy to possess

with intent to distribute 5 kilograms or more of cocaine and 50

grams or more of cocaine base, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A), 846 (2000).         He was sentenced to 240 months

in prison.    Smith appeals his sentence.

            Smith first argues that the district court erred in

assessing criminal history points for his state conviction for

possession with intent to distribute cocaine in September 1996,

which he contends was part of the same course of conduct or common

scheme or plan as his federal drug conspiracy offense.               Smith

argues that without those criminal history points he would be

eligible for the safety valve provision of the U.S. Sentencing

Guidelines Manual (“USSG”) § 5C1.2.            A sentence which is for

conduct that is part of the instant offense should not be counted

as a prior sentence in determining criminal history.                USSG §

4A1.2(a)(1).     Conduct is part of the instant offense if it is

relevant    conduct   under   guideline    section   1B1.3.   See   USSG   §

4A1.2(a)(1), comment. (n.1).     Under guideline section 1B1.3(a)(2),

relevant conduct includes acts that were part of the “same course

of conduct or common scheme or plan” as the offense of conviction

when the offenses are the type which would be grouped under §

3D1.2(d).    However, as noted by Application Note 8 to USSG § 1B1.3,

when, as here, the defendant was previously convicted and sentenced


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for the sale of cocaine, then immediately upon release from prison

again sells cocaine using the same accomplice and modus operandi,

the offense conduct relevant to the state prison sentence is

considered as prior criminal history, not as part of the same

course of conduct or common scheme or plan as the offense of

conviction. We therefore find that because Smith was convicted and

sentenced in state court for distribution of cocaine and after

release   from   that   sentence   resumed   distributing    cocaine,   the

district court did not err in concluding Smith’s prior state prison

sentence is counted in determining his criminal history category.

See USSG § 1B1.3, comment. (n.8).

            Smith next argues on appeal that the district court erred

in denying his motion to compel the Government to make a motion for

a downward departure as agreed to in the plea agreement.                The

Government’s decision not to move for a departure is reviewed only

for bad faith or unconstitutional motive.           See Wade v. United

States, 504 U.S. 181, 185-86 (1992); United States v. Snow, 234

F.3d 187, 190 (4th Cir. 2000) (citation omitted).           Here, the plea

agreement   included    a   provision   that,   “[t]he   failure   of   the

Defendant to be fully truthful and forthright at any stage will, at

the sole election of the [Government], cause the obligations of the

[Government] within the Agreement to become null and void.”          Smith

further stipulated and agreed in the plea agreement that “his

failure to pass any [polygraph] examination to the Government’s


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satisfaction will result, at the Government’s sole discretion, in

the obligations of the [Government] within the Agreement becoming

null and void.”

              Smith admitted that he was only 95 percent truthful with

the Government.        In addition, he failed the Government’s polygraph

examination.         Therefore, because Smith was not fully truthful in

the information he supplied to the Government, in violation of the

terms   of     his    plea   agreement,     and   he   does     not   allege   any

unconstitutional motive or bad faith on the part of the Government

in declining to move for a downward departure, we find the district

court   did    not     err   in   denying   Smith’s    motion    to   compel   the

Government to move for a downward departure.

              Accordingly, we affirm the district court’s judgment. 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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