UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-7109

MARY BROWN DALE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Graham C. Mullen, District Judge.
(CR-91-15-ST-MU, CA-95-104-5-MU)

Submitted: March 17, 1998

Decided: March 30, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Marcia G. Shein, Atlanta, Georgia, for Appellant. Mark T. Calloway,
United States Attorney, Brian L. Whisler, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Mary Brown Dale pled guilty to conspiracy to possess with intent
to distribute between one thousand and three thousand kilograms of
marijuana, 21 U.S.C. § 846 (1994). She was sentenced to 132 months'
imprisonment. Dale did not appeal her conviction or sentence, but
filed a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997),
contending that the Government breached the plea agreement by fail-
ing to move for a downward departure and contending that she
received ineffective assistance of counsel. The district court denied
both claims but granted a certificate of appealability. Dale timely
noted an appeal from the district court's order. We find no merit to
her claims.

Dale contends that the Government breached the plea agreement by
acting in bad faith and failing to file either a motion for a downward
departure under U.S. Sentencing Guidelines Manual § 5K1.1 (1991),
or a motion to reduce her sentence under Fed. R. Crim. P. 35, in light
of Dale's substantial assistance. The district court may inquire into
the reason for the government's decision not to move for a departure
for substantial assistance only if there is proof that the plea agreement
has been breached or that the government's decision was based on an
unconstitutional motive, such as racial or religious bias. See United
States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994) (citing Wade v.
United States, 504 U.S. 181, 185-87 (1992)). Dale's plea agreement
reserves to the Government the sole discretion to decide whether to
file a motion for a downward departure based upon substantial assis-
tance. The plea agreement states:

          By virtue of this Plea Agreement the defendant, MARY
          BROWN DALE, agrees to provide truthful information
          about any and all criminal activity within her knowledge
          . . . . When and if said assistance has been completed the
          government, in good faith and in its sole discretion, shall
          determine whether said assistance has been substantial.
          Upon a determination that the defendant has rendered sub-
          stantial assistance the government shall make a motion pur-
          suant to § 5K1.1 if prior to imposition of sentence, or a

                     2
          motion pursuant to Federal Rule of Criminal Procedure 35,
          if within one year from imposition of sentence, recommend-
          ing a downward departure from the Sentencing Guidelines
          to a level 25.

The Government did not breach the plea agreement by failing to
move for a reduction because the agreement contained no uncondi-
tional promise and therefore, created no enforceable obligation on the
part of the Government. See id.

Because the decision to move for a downward departure was within
the sole discretion of the Government, the decision is not reviewable
unless the Government based its decision upon an unconstitutional
factor, such as race. See Wade v. United States , 504 U.S. 181, 185-87
(1992). Although Dale contends that the Government's decision was
made in bad faith and that she did in fact provide substantial assis-
tance to the Government, there is no evidence that the Government's
failure to move for a departure was based on an unconstitutional
motive. Accordingly, the Government's decision is not subject to
review. See id.

Dale also alleges that she received ineffective assistance of counsel
because her attorney failed to investigate her mental health back-
ground. In addition, she contends that counsel failed to alert the sen-
tencing court that she suffered from a nervous condition that may
have warranted consideration of a downward departure or mitigation
of sentence for diminished mental capacity under USSG §§ 5K2.0,
5K2.13, 5H1.3 (1991). To state a claim of ineffective assistance of
counsel in the context of a guilty plea, Dale must establish that her
attorney's performance fell below objective standards of reasonable-
ness and that there is a reasonable probability that but for counsel's
errors, she would not have pled guilty. See Hill v. Lockhart, 474 U.S.
52, 58-59 (1985); Strickland v. Washington, 466 U.S. 668, 687-94
(1984). Dale failed to establish either element.

Dale's trial counsel filed an affidavit in which he stated that he did
not notify the court of Dale's mental condition at sentencing because
he was unaware of the condition until family members informed him
of it sometime after Dale was incarcerated. Counsel also stated that
he had some concerns about whether Dale was "coping with her situa-

                    3
tion in an appropriate fashion;" however, he had no way of knowing
the severity of her problems at the time of the proceedings. As the dis-
trict court properly noted, Dale provided no medical proof of her con-
dition. The presentence report stated only that she was diagnosed with
chronic anxiety neurosis and that she had been treated with Valium.
In addition, Dale stated under oath during sentencing that she had
never been treated for mental illness. Dale does not allege that she
would not have pled guilty had counsel discovered her alleged dimin-
ished capacity, nor has she established that even had counsel discov-
ered her condition and notified the court, her condition would have
warranted a downward departure in her sentence. In light of these
facts, we find that counsel's performance was not objectively unrea-
sonable and that Dale was not prejudiced by counsel's actions. See
Strickland, 466 U.S. at 687-94.

We affirm the district court's order. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    4
