UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                   No. 95-8562
LANCE NATHANIEL MORRISON, a/k/a
Blink,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CR-93-155-BO)

Submitted: September 24, 1996

Decided: October 22, 1996

Before ERVIN and WILKINS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, William
Arthur Webb, Assistant United States Attorney, Jannika Cannon,
Third Year Law Intern, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lance Nathaniel Morrison appeals his sentence imposed pursuant
to his conviction for a drug offense. He claims the district court erred
by failing to review the Government's refusal to move for a down-
ward departure in his sentencing. We affirm.

Morrison pled guilty pursuant to a written plea agreement. Pursuant
to the plea agreement, Morrison agreed to testify, whenever called
upon to do so by the Government, fully and truthfully in any proceed-
ing. Morrison also agreed to submit to a polygraph examination
whenever requested by the Government. The agreement provided that
the results of these examinations would be admissible only at Morri-
son's sentencing, and the Government would rely on these results in
determining whether Morrison fulfilled any obligation under the
agreement. The Government agreed that it would make known to the
sentencing court the full extent of Morrison's cooperation, including
whether the Government deemed Morrison to have substantially
assisted authorities, but the Government did not promise to move for
a downward departure based on substantial assistance.

The district court sentenced Morrison to 480 months of imprison-
ment. Morrison subsequently failed three polygraph examinations,
and the Government notified Morrison that it would not move for a
downward departure. Morrison then moved in the district court to
compel the Government to file a motion for a downward departure
pursuant to Fed. R. Crim. P. 35. The district court denied Morrison's
motion, and Morrison timely appealed.

Morrison's plea agreement did not impose a binding obligation on
the Government to move for a downward departure. The plea agree-
ment provided only that the Government would make known to the
sentencing court the full extent of Morrison's cooperation, including

                     2
whether the Government deemed Morrison to have substantially
assisted authorities, but the Government specifically did not promise
to move for a downward departure based on substantial assistance.
Thus, the agreement in the instant case gave rise to no enforceable
promise, explicitly reserving discretion rather than promising any-
thing. See United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994),
cert. denied, ___ U.S. ___, 63 U.S.L.W. 3266 (U.S. Oct. 3, 1994)
(No. 94-5653). When the decision to make the downward departure
motion is within the sole discretion of the Government, a district court
may review the Government's refusal to file a substantial assistance
motion, and grant a remedy, if the court finds that the refusal: (1) is
based on an unconstitutional motive, such as race or religion; or (2)
is not rationally related to a legitimate government objective. Wade
v. United States, 504 U.S. 181, 184-87 (1992). However, before a
judicial inquiry is required, a defendant has the burden to do more
than merely allege an unconstitutional motive. Wade requires that a
defendant must go further and make a substantial threshold showing,
failing which he is not entitled to a remedy or even a judicial inquiry
into the government's motive for refusing to move for a downward
departure. Id. at 186.

Morrison failed to make such a substantial threshold showing, and
thus, the district court did not err by failing to conduct a judicial
inquiry into the Government's motive. Morrison's claim that the Gov-
ernment's motive was unconstitutional because it was not rationally
related to any Government interest is meritless. The Government
claimed that its refusal to move for a downward departure was justi-
fied by its interests in encouraging defendants to fulfill their plea
agreements and not rewarding routine cooperation, to which a defen-
dant has already obligated himself, with a motion for substantial
assistance. Morrison's plea agreement explicitly made the results of
the polygraph examination admissible at sentencing to determine
whether Morrison had fulfilled any obligation under the agreement.
The results of Morrison's polygraph examinations showed that he
failed to fulfill his obligation under the plea agreement. Thus, the
Government's refusal to move for a downward departure was ratio-
nally related to a legitimate interest. See id.

Accordingly, we affirm Morrison's sentence. We dispense with
oral argument because the facts and legal contentions are adequately

                    3
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

                   4
