UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 99-4433
THOMAS JEFFERSON PRICE, III, a/k/a
Thomas Price,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-98-104)

Submitted: November 30, 1999

Decided: January 6, 2000

Before WILLIAMS, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael A. Grace, MICHAEL A. GRACE, P.A., Winston-Salem,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Benjamin H. White, Jr., Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Thomas Jefferson Price, III, pled guilty without a plea agreement
to conspiracy to possess methamphetamine with intent to distribute,
see 21 U.S.C. § 846 (1994), and three counts of methamphetamine
distribution. See 21 U.S.C. § 841(a) (1994). He appeals the 330-
month sentence imposed by the district court, arguing that the district
court erred when it refused to compel the government to move for a
substantial assistance departure pursuant to U.S. Sentencing Guide-
lines Manual § 5K1.1, p.s. (1998). We affirm.

Shortly before he was scheduled to go to trial, Price's attorney dis-
cussed a possible guilty plea with the Assistant United States Attor-
ney handling the case, David Folmar, and learned that, if Price
decided to plead guilty and cooperate, the government would be inter-
ested in pursuing Price's sources. To that end, Folmar said the gov-
ernment would try to have Price debriefed and would try to make a
case against his sources if possible. Price entered a guilty plea and
was debriefed a few days before his first scheduled sentencing in
October 1998. Sentencing was continued to November, on Price's
motion, to give the government more time to decide whether a sub-
stantial assistance motion would be made. Because the investigation
had not progressed by then, sentencing was again continued to Febru-
ary 1999. All sentencing issues were resolved at the February hearing,
leaving only a dispute as to whether the government had induced
Price's guilty plea through an oral agreement to use any information
he provided in a further investigation and, possibly, move for a depar-
ture under § 5K1.1 if the information proved helpful.

At the final sentencing hearing in May 1999, Folmar described the
events leading to Price's guilty plea, and the reasons for the subse-
quent delay in investigating Price's sources. The government noted
that a substantial assistance motion was still possible because Rule

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35(b) of the Federal Rules of Criminal Procedure now permits the
court to consider pre-sentence assistance when deciding a Rule 35(b)
motion. The district court then determined that the government had
not entered into any agreement, oral or written, that obligated it to
make a § 5K1.1 motion, that no contract had been breached, and that
there was no evidence of bad faith on the part of the government. The
court denied Price's motion to compel the government to file a
§ 5K1.1 motion.

On appeal, Price claims that the court erred because his guilty plea
was induced by an oral agreement on the part of the government to
give him the opportunity to render substantial assistance. The record
discloses that, to the extent there was such an oral agreement, Price
received the benefit of it, because he was debriefed and was given the
opportunity to provide substantial assistance.

Price also suggests that an implied term of his alleged contract was
breached; presumably he means that the government was slow to use
the information he had provided in the hope that it would lead to a
§ 5K1.1 departure. However, Price has not shown that the govern-
ment promised him a speedy investigation. Most importantly, Price
does not claim that the government obligated itself to file a § 5K1.1
motion even if he did render substantial assistance, and the district
court determined that there was, in fact, no such agreement. The court
did not err in this determination. Price did not produce any evidence
that the government committed itself to move for a substantial assis-
tance departure, no matter how useful his assistance proved to be.
When there is no plea agreement, a defendant cannot compel a
§ 5K1.1 motion even if he has provided substantial assistance to the
government, unless he can also show that the government's decision
not to make the motion was based on a constitutionally impermissible
motive, such as race or religion. See Wade v. United States, 504 U.S.
181, 186 (1992); United States v. Dixon, 998 F.2d 228, 230 (4th Cir.
1993). Because Price has not shown that the government's failure to
move for a substantial assistance departure was based on an unconsti-
tutional motive, the district court did not err in denying his motion to
compel.

We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the decisional
process.

AFFIRMED

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