                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4262



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ROMAN WOODSON, a/k/a Maxwell Bentley, a/k/a
John Hanover, a/k/a Francis Perissi, a/k/a
Daniel Ott,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-02-261-MJG)


Submitted:   September 28, 2005           Decided:   October 25, 2005


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul R. Kramer, PAUL R. KRAMER, P.A., Baltimore, Maryland, for
Appellant. Thomas M. DiBiagio, United States Attorney, Martin J.
Clarke, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Roman Woodson pled guilty, pursuant to a written plea

agreement, to one count of conspiracy to commit identity fraud, in

violation of 18 U.S.C. § 1028(a)(3) (2000), and was sentenced to 33

months imprisonment. He appeals, claiming first, that the district

court erred in finding that the Government did not breach the plea

agreement by failing to move for a downward departure pursuant to

United States Sentencing Guidelines Manual § 5K1.1 (2003).               This

court reviews for clear error the district court’s decision not to

compel the Government to file a § 5K1.1 motion.           See United States

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

agreement clearly stated that the decision whether to move for a

departure based on substantial assistance lay within the sole

discretion of the Government.         Therefore, the Government had no

obligation to make such a motion, even in the face of substantial

assistance.    See United States v. Snow, 234 F.3d 187, 190 (4th Cir.

2000).   Woodson does not suggest, and there is no evidence to show,

that   the   Government   refused    to     make   a   motion   based   on   an

unconstitutional motive.    See Wade v. United States, 504 U.S. 181,

185-86 (1992).     Finally, the Government presented evidence that

Woodson violated the terms of the plea agreement by committing

other state and federal crimes.           See United States v. David, 58

F.3d 113 (4th Cir. 1995) (holding that defendant’s failure to

appear at sentencing, despite rendering substantial assistance,


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relieved government of duty to move for a downward departure).

Accordingly, the district court did not clearly err in refusing to

compel the Government to file a § 5K1.1 motion.

             Woodson also challenges the enhancement he received for

use of a special skill, USSG § 3B1.3, under United States v.

Booker, 125 S. Ct. 738 (2005).     In Booker, the Supreme Court held

that the federal mandatory guidelines scheme, which provided for

sentence enhancements based on facts found by the court, violated

the Sixth Amendment.     125 S. Ct. at 746-48, 755-56 (Stevens, J.,

opinion of the Court).       The Court remedied the constitutional

violation by severing and excising the statutory provisions that

mandate sentencing and appellate review under the guidelines, thus

making the guidelines advisory. Id. at 756-57 (Breyer, J., opinion

of the Court).

             Here, although Woodson received a two-level enhancement

based   on   judicial   factfinding,   there   is   no   Sixth   Amendment

violation because the 33-month sentence imposed does not exceed the

maximum of the unenhanced range (27 to 33 months imprisonment).

See United States v. Evans, 416 F.3d 298, 300-01 (4th Cir. 2005)

(holding that if sentence does not exceed maximum authorized by

facts admitted by defendant or found by jury, there is no Sixth

Amendment violation).

             Accordingly, we affirm Woodson’s sentence.      We dispense

with oral argument because the facts and legal contentions are


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adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                          AFFIRMED




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