                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-5023



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


LINWOOD EARL JONES, JR., a/k/a Earl Linwood
Jones,

                                               Defendant - Appellant.



Appeal from the United States District        Court for the Middle
District of North Carolina, at Durham.         James A. Beaty, Jr.,
District Judge. (CR-04-499)


Submitted:   August 31, 2006             Decided:   September 21, 2006


Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam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


Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON,
L.L.P., Greensboro, North Carolina, for Appellant.     Anna Mills
Wagoner, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Linwood Earl Jones, Jr., pled guilty to possession of

marijuana with intent to distribute in violation of 21 U.S.C.A.

§ 841(a), (b)(1)(D) (West 1999 & Supp. 2006) (Counts One and Four);

possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C.A. § 924(c) (West 2000 & Supp. 2006) (Count Two); and

possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (2000)

(Count Six).    Jones received a sentence of fifty-four months for

Count One, Count Four, and Count Six, and a consecutive ten-year

sentence for Count Two.   Jones appeals his sentence, arguing that

the district court erred in denying him a three-level adjustment

for acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2005), and in refusing either to compel the government to

move for a downward departure for substantial assistance, USSG

§ 5K1.1, p.s., or to depart downward under USSG § 5K2.0, p.s.   We

affirm in part and dismiss in part.

          Jones was initially indicted under the name Earl Lynwood

Jones, an error which his attorney pointed out at his arraignment

in January 2005.   On March 28, 2005, a superseding indictment was

filed which charged Jones with the same offenses, but used his

correct name.   On March 30, 2005, Jones signed a plea agreement,

and on March 31, 2005, the day scheduled for trial, he entered a

plea of guilty.    The probation officer recommended a two-level

adjustment for acceptance of responsibility, see USSG § 3E1.1(a),


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but the government declined to move for the additional one-level

reduction under § 3E1.1(b) because Jones’ guilty plea was not

timely.   At sentencing, Jones objected to the government’s failure

to move for the additional reduction. The district court overruled

his objection.

            A defendant who has earned a two-level adjustment for

acceptance of responsibility may receive an additional one-level

reduction    only     if   the   government       moves    for   the    additional

reduction.     USSG § 3E1.1(b).            Application Note 6 to § 3E1.1

explains that the government’s motion is required because the

government “is in the best position to determine whether the

defendant    has    assisted     authorities      in   a   manner      that   avoids

preparing for trial . . . .”           Note 6 also specifies that “the

conduct qualifying for a decrease . . . under subsection (b) will

occur particularly early in the case.”

            Because    Jones     entered    his    guilty    plea      on   the   day

scheduled for trial, after the government had been forced to

prepare fully for trial, and the government consequently declined

to move for a reduction under subsection (b), the district court

did not err in denying Jones the additional one-level adjustment

for acceptance of responsibility.

            At sentencing, Jones also challenged the government’s

failure to move for a downward departure, asserting that he had

provided substantial assistance to state authorities and had so


                                     - 3 -
informed the government.    The government explained that Jones had

provided no assistance to federal authorities. She stated that she

had contacted the state officer identified by defense counsel and

learned that Jones provided assistance to him.           However, after

cooperating, Jones engaged in new criminal conduct which formed the

basis for the charges in Counts Four and Six.          She stated that,

under   these   circumstances,   she   would   not   request   a   §   5K1.1

departure.      The district court determined that Jones had not

provided substantial assistance to the federal prosecutor, that the

government was under no obligation to reward him for assistance to

state authorities, and that the government’s motives for not

requesting a departure were not unconstitutional.               The court

refused to compel a § 5K1.1 motion and also found no reason to

depart downward under § 5K2.0.

           This court reviews for clear error the district court’s

decision not to compel the government to file a § 5K1.1 motion.

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000); United

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

agreement did not obligate the government to move for a § 5K1.1

departure even if he provided substantial assistance. There was no

evidence that the government refused to make the motion based on

any unconstitutional motive.     See Wade v. United States, 504 U.S.

181, 185-86 (1992).    Therefore, the district court did not clearly

err in refusing to compel the government to file a § 5K1.1 motion.


                                 - 4 -
          A     district    court’s    decision   not   to     depart    is   not

reviewable on appeal as long as the court recognized its authority

to depart.    United States v. Quinn, 359 F.3d 666, 682 (4th Cir.

2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir. 1990)).*     Here, the district court expressed no uncertainty

about its authority to depart under USSG § 5K2.0.                      The court

concluded,    however,     that   under   the   facts   of    Jones’    case,   a

departure was not warranted.          We conclude that this claim is not

reviewable on appeal.       See Quinn, 359 F.3d at 682.

          We therefore affirm the sentence imposed by the district

court, but dismiss that portion of the appeal which contests the

district court’s decision not to depart.            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




     *
      Courts that have considered this issue since United States v.
Booker, 543 U.S. 220 (2005), was decided have uniformly concluded
that Booker does not change the rule. See, e.g., United States v.
Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting cases from
five circuits).

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