UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4483

JAMES SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James C. Turk, District Judge.
(CR-98-32)

Submitted: January 25, 2000

Decided: February 11, 2000

Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

Jay Kenneth Wilk, Woodstock, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Bruce A. Pagel, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

James Smith pled guilty to two counts of distributing cocaine base
(crack), see 21 U.S.C. § 841(a) (1994), and received a term of 108
months imprisonment. He appeals his sentence, arguing that the dis-
trict court plainly erred in sentencing him within the guideline range
despite the government's decision not to move for a substantial assis-
tance departure. See U.S. Sentencing Guidelines Manual § 5K1.1, p.s.
(1998). He also asserts that the district court erred in failing to find
that his poor health warranted a departure. We affirm in part and dis-
miss in part.*

At the sentencing hearing, the government informed the district
court that it would not move for a substantial assistance departure
because Smith had not cooperated. Smith's attorney did not object,
although Smith now alleges that he provided extensive information to
authorities. Because the plea agreement did not promise a substantial
assistance motion in return for substantial assistance, the district court
could not depart without a government motion unless the govern-
ment's refusal to move for a departure was based on an unconstitu-
tional motive or was not rationally related to a legitimate government
purpose. See Wade v. United States, 504 U.S. 181, 184-87 (1992);
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*The government suggests that the appeal should be dismissed
because the plea agreement contains a waiver of appeal rights. Although
the district court mentioned this provision at the Fed. R. Crim. P. 11
hearing, it did not do so until after Smith's guilty plea had been accepted.
We have held that a waiver of appeal rights cannot be knowing and vol-
untary unless the district court specifically questions the defendant about
the waiver provision during the Rule 11 colloquy or the record otherwise
indicates that the defendant understood the significance of the waiver.
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). Without
deciding whether the waiver is valid, we will address the issues Smith
raises on the merits.

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United States v. Maddox, 48 F.3d 791, 795 (4th Cir. 1995) (following
Wade); see also United States v. Schaefer , 120 F.3d 505, 508 (4th Cir.
1997) (same). Smith did not allege any unconstitutional motive or
other improper purpose. Consequently, the district court was without
authority to depart below the guideline range and did not err in impos-
ing a sentence within the range.

The district court was aware that Smith had recently had surgery
for cancer, but chose not to depart. Its discretionary decision is not
reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 31
(4th Cir. 1990). Therefore, this portion of the appeal must be dis-
missed for lack of jurisdiction. Id.

We therefore affirm the sentence, but dismiss that portion of the
appeal that challenges the district court's decision not to depart based
on Smith's ill health. 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 IN PART; DISMISSED IN PART

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