                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-4002


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONALD GASCHLER,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00007-FPS-JES-3)


Submitted:   August 11, 2010                 Decided:   September 8, 2010


Before WILKINSON and    NIEMEYER,    Circuit     Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West
Virginia, for Appellant.      Betsy C. Jividen, United States
Attorney, Randolph J. Bernard, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant to the terms of his written plea agreement,

Donald Gaschler pled guilty to conspiracy to possess with intent

to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C),

846 (2006) (“Count One”), and possession of firearms in relation

to    a   drug    trafficking    offense,    in   violation      of    18   U.S.C.

§ 924(c)(1)(A)(i) (2006) (“Count Five”).                While free on bond

prior     to     sentencing,    Gaschler    facilitated    the        Government’s

arrest and prosecution of two individuals.                 As a result, the

Government filed a motion, pursuant U.S. Sentencing Guidelines

Manual § 5K1.1 (2008), for a downward departure in Gaschler’s

sentence.

               When   Gaschler     failed   to    appear   for        sentencing,

however, the Government requested that the district court permit

it to withdraw the § 5K1.1 motion.            The Government argued that,

despite Gaschler’s assistance being substantial, his subsequent

conduct — failing to appear at sentencing, fleeing, and evading

capture — was inconsistent with a § 5K1.1 motion.                 Over defense

counsel’s objection, the district court permitted the withdrawal

of the § 5K1.1 motion.          The district court sentenced Gaschler to

115   months’      imprisonment,    consisting    of   fifty-five       months   on

Count One and sixty months, consecutive, on Count Five.                      This

appeal timely followed.



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              Gaschler’s            sole    appellate       contention         is   that    the

district court erred in permitting the Government to withdraw

its § 5K1.1 motion.              For the reasons that follow, we reject this

argument and affirm the district court’s judgment.

              We review legal questions concerning the application

of     the   Sentencing          Guidelines         de    novo     and     review       factual

determinations for clear error.                      United States v. Manigan, 592

F.3d     621,      626       (4th    Cir.     2010)      (internal        quotation        marks

omitted).       Thus, this court will defer to the district court’s

factual      determinations            underlying        its     conclusion         that    the

Government      had      a    rational      basis     for   seeking       to   withdraw     its

motion for a downward departure, “[b]ut . . . will look afresh

at the court’s legal conclusion that those facts constitute a

rational basis for the government’s decision.”                            United States v.

Butler,      272    F.3d      683,    686    (4th    Cir.    2001);      see    also     United

States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991) (reviewing

for clear error district court’s finding that the government did

not    breach      the    plea      agreement       by   failing    to    make      a   § 5K1.1

motion).

              As    the      district       court    rightly     concluded,         Gaschler’s

contention that his post-assistance, pre-sentencing conduct did

not support the Government’s request to withdraw the § 5K1.1

motion is contrary to our circuit precedent.                             See United States

v. David, 58 F.3d 113 (4th Cir. 1995).                           As we held in David,

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“the defendant’s obligation to appear for sentencing at the time

appointed by the district court” is implicit in the parties’

agreement pertaining to a § 5K1.1 motion.               Id. at 115.        It is

undisputed that Gaschler, like the defendant in David, failed to

appear at his sentencing hearing.              Accordingly, the district

court did not commit any clear error in its factual findings or

otherwise   err   in    concluding   that    this    conduct     supported    the

withdrawal of the Government’s § 5K1.1 motion.                  See Butler, 272

F.3d at 686.

            For   these   reasons,   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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