                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4286


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHNNIE LEE LUCAS, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:11-cr-00230-FL-1)


Submitted:   November 30, 2012            Decided:   January 10, 2013


Before WYNN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-
McKinney, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Johnnie          Lee     Lucas          pled       guilty        to     one     count    of

possession of twenty-eight or more grams of cocaine base (crack)

with intent to distribute in violation of 21 U.S.C. § 841(a)

(2006).     The district court varied below the Guidelines range of

188-235     months        and       imposed             a     sentence        of      175     months’

imprisonment.           Lucas appeals his sentence, contending that it

was error for the government to refuse to file a motion for a

downward    departure         based       on    his         substantial           assistance,       U.S.

Sentencing Guidelines Manual § 5K1.1, p.s. (2011), and that the

district court’s downward variance was insufficient to meet the

sentencing goals of 18 U.S.C. § 3553(a) (2006).                                   We affirm.

            With respect to the first issue, Lucas concedes that,

under Wade v. United States, 504 U.S. 181, 185-86 (1992), the

district court may review a prosecutor’s decision not to file a

§   5K1.1   motion        and      grant       relief          only     if    the        prosecutor’s

decision was based on an unconstitutional motive.                                         Lucas also

concedes that no showing of an unconstitutional motive was made

at sentencing.          Therefore, this claim fails.

            Next,       at    his       sentencing            hearing,       Lucas       requested    a

sentence of 150 months based on his cooperation with state and

federal     authorities            prior       to       his    arrest.             The    government

requested    a    sentence         at    the    bottom          of    the     Guidelines       range,

explaining       that    Lucas       had   cooperated,               but     had    continued       his

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unlawful conduct while cooperating, although he was instructed

that he could not violate the law while cooperating.             We review

a sentence for reasonableness, applying an abuse of discretion

standard, Gall v. United States, 552 U.S. 38, 51 (2007), which

requires   consideration        of   both    procedural   and   substantive

reasonableness.    Id.    In reviewing a variance, we must give due

deference to the sentencing court’s decision.             United States v.

Diosdado-Star, 630 F.3d 359, 366 (4th Cir.), (citing Gall, 552

U.S. at 51), cert. denied, 131 S. Ct. 2946 (2011).

           Lucas argues that the district court may consider a

defendant’s cooperation as a basis for a reduced sentence even

if the government has not filed a § 5K1.1 motion, citing United

States v. Knox, 573 F.3d 441 (7th Cir. 2009), and United States

v. Fernandez, 443 F.3d 19 (2d Cir. 2006).            However, it is clear

from the record that, in this case, the district court in fact

considered Lucas’ cooperation in determining his sentence, and

sentenced him below the Guidelines range based on his motion for

a   downward   variance   for    substantial     assistance.     The   court

stated that Lucas’ failure to comply with the rule that he not

break the law while cooperating with authorities would affect

its sentencing determination.              We conclude that the district

court did not abuse its discretion in varying to a sentence of

175 months, and that the sentence is not unreasonable.



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           We therefore 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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