UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4389

TIMOTHY MICHAEL BAKER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William B. Traxler, Jr., District Judge.
(CR-96-820, CR-97-1024)

Submitted: November 17, 1998

Decided: December 15, 1998

Before WILLIAMS and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Tony Serra, Shari L. Greenberger, SERRA, LICHTER, DAAR,
BUSTAMANTE, MICHAEL & WILSON, San Francisco, California,
for Appellant. J. Rene Josey, United States Attorney, E. Jean Howard,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Timothy Michael Baker appeals his sentence imposed after plead-
ing guilty to one count of conspiracy to possess with intent to distrib-
ute methamphetamine, 21 U.S.C. § 846 (1994), and one count of
possession with intent to distribute methamphetamine, 21 U.S.C.
§ 841(a)(1) (1994). Baker contends the Government breached the plea
agreement by not moving for a downward departure based upon
Baker's assistance. Baker also contends the court erred by denying his
motion to withdraw his guilty plea. Finding no reversible error, we
affirm.

In September 1996, Baker was indicted in the Northern District of
California for distribution of methamphetamine. In October 1996, he
was indicted in the District of South Carolina for conspiracy to dis-
tribute methamphetamine. The California case was transferred to
South Carolina.

In an oral plea agreement, Baker agreed to provide complete and
truthful information. The Government agreed that if Baker provided
substantial assistance, it would move for a downward departure under
U.S. Sentencing Guidelines Manual § 5K1.1 (1995). The motion for
a downward departure would have to come at the recommendation of
the United States Attorneys' Offices in the Northern District of Cali-
fornia and the District of South Carolina. Baker was debriefed by fed-
eral agents on two occasions, once in California and once in South
Carolina.

At the plea hearing, the court reviewed the plea agreement. The
court informed Baker that it was within the Government's discretion
to seek a downward departure and the court had little control over that
discretion. Baker was also informed that he faced a possible life sen-
tence. Baker conceded that no one made any promises as to his sen-
tence.

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Baker subsequently moved for downward departure or in the alter-
native, a withdrawal of the guilty plea. Baker contended that the Gov-
ernment refused to move for downward departure and that such
refusal was arbitrary, in bad faith, and not rationally related to pro-
moting any legitimate government end. Baker claimed that he named
his sources, promised to testify before a grand jury and at trial, and
would do everything required by the Government in this regard.

The court held a hearing on Baker's motion at which the Govern-
ment offered the testimony of FBI Agent James Rooney. Rooney tes-
tified that Baker did not provide any information concerning persons
still active in the drug trade and that he was not aware of any informa-
tion provided by Baker that was being used in any investigation. The
Government therefore asserted that Baker had not provided substan-
tial assistance. The court found that the Government's determination
that information provided by Baker was not substantial was reason-
able and that the plea agreement was not violated by the Govern-
ment's refusal to move for a downward departure. The court thus
denied Baker's motion.

If the Government uses the possibility of moving for a § 5K1.1
downward departure as an inducement to enter into a plea agreement,
the court must determine whether the defendant satisfied his contrac-
tual obligations. See United States v. Conner , 930 F.2d 1073, 1075
(4th Cir. 1991). Because this is a factual finding, we review for clear
error. See id. at 1076-77. The defendant bears the burden of proving
by a preponderance of the evidence that he provided substantial assis-
tance. See id. at 1076.

Under USSG § 5K1.1, the Government may move for a downward
departure if the defendant provides substantial assistance in the inves-
tigation or prosecution of another person who has committed an
offense. Baker contends that he provided truthful, reliable information
and was willing to do whatever the Government wanted, including
wearing a wire during drug deals or testifying before a grand jury and
at trial. However, a defendant who cooperates truthfully and fully is
not necessarily providing substantial assistance. See United States v.
Wallace, 22 F.3d 84, 87 (4th Cir. 1994). Furthermore, Baker did not
have any evidence that he actually provided substantial assistance in
the investigation or prosecution of other persons. He did not testify

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for the Government before a grand jury or at trial. Nor was there any
evidence that his information assisted an ongoing investigation or
prosecution. We therefore conclude that the court did not clearly err
in finding no violation of the plea agreement.

We also find that the court did not abuse its discretion in denying
Baker's motion to withdraw his guilty plea. See United States v.
Sparks, 67 F.3d 1145, 1150 (4th Cir. 1995) (court's denial of a defen-
dant's motion to withdraw guilty plea reviewed for abuse of discre-
tion). Baker contends that he should have been permitted to withdraw
his guilty plea because he was promised that the Government would
move for a downward departure in exchange for his plea. However,
at the plea hearing, Baker was informed that a § 5K1.1 motion was
within the discretion of the Government. It was also made clear that
the § 5K1.1 motion would only be filed if he provided substantial
assistance and only at the recommendation of both United States
Attorneys' Offices.

A court may permit a defendant to withdraw a guilty plea for "any
fair and just reason." See Fed. R. Crim. P. 32(e). A fair and just rea-
son for withdrawing a plea may be one that essentially challenges the
fulfillment of a promise or condition emanating from the proceeding.
See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
Baker was entitled to a § 5K1.1 motion only if the Government con-
cluded that he provided substantial assistance. Baker fails to demon-
strate that he in fact provided substantial assistance; therefore, the
Government was not obligated to file a § 5K1.1 motion under the plea
agreement. Thus, Baker fails to establish that a promise by the Gov-
ernment was unfulfilled.

Based on the foregoing, we affirm Baker's conviction and sen-
tence. We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the court
and argument would not aid in the decisional process.

AFFIRMED

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