UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4345

BILLY RAY DAVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-97-776)

Submitted: January 5, 1999

Decided: January 22, 1999

Before ERVIN, MOTZ, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Wm. Reynolds Williams, WILLCOX, MCLEOD, BUYCK & WIL-
LIAMS, Florence, South Carolina, for Appellant. J. Rene Josey,
United States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Billy Ray Davis pled guilty to conspiracy to possess cocaine with
intent to distribute. In his plea agreement, Davis agreed to provide full
and truthful information to the Government in its investigation of ille-
gal drug activities; he specifically agreed to submit to polygraph
examinations as required by the Government. In return, the Govern-
ment agreed to make a motion for a downward departure under U.S.
Sentencing Guidelines, § 5K1.1, p.s. (1997), if it is determined that
Davis had provided substantial assistance. On appeal, Davis only
alleges that the district court erred by not requiring the Government
to make a § 5K1.1 motion. For the reasons that follow, we affirm.

We review a district court's denial of a motion to compel the Gov-
ernment to make a motion for a downward departure for clear error.
See United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). In
the absence of a government motion, a sentencing court cannot grant
a downward departure for substantial assistance unless the govern-
ment has committed itself in a plea agreement to do so or defendant
establishes that the Government's refusal to make such a motion was
based on an unconstitutional motive. See Wade v. United States, 504
U.S. 181, 185-86 (1992). The Government's obligation to move for
a downward departure for substantial assistance is released when a
defendant breaches the agreement. See generally United States v.
David, 58 F.3d 113, 115 (4th Cir. 1995). Also, the party alleging a
breach must prove it by a preponderance of the evidence. See Conner,
930 F.2d at 1076.

Davis was initially told that he passed his polygraph examination.
However, because another review of the exam revealed deception, the
Government scheduled Davis for a second test. The district court,
after hearing evidence, declined to compel the Government to make
a motion for a downward departure because the evidence was uncon-
tested that Davis refused to take a second polygraph examination and
thus breached the plea agreement. The court also found that the Gov-
ernment had a separate good faith basis to believe that Davis had not
provided substantial assistance.* Under these circumstances, we do
_________________________________________________________________
*The Government presented evidence that Davis continued to illegally
sell drugs for his own benefit during the time period when he was
expected to work only on behalf of the Government.

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not find that the district court clearly erred in declining to order the
Government to make a § 5K1.1 motion. See David, 58 F.3d at 114-15;
Conner, 930 F.2d at 1076. Davis makes no suggestion of an unconsti-
tutional motive. See Wade, 504 U.S. at 185-86. Thus, we affirm. We
dispense with oral argument as the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process. We deny the motion filed by
Davis' attorney to withdraw as counsel, as moot.

AFFIRMED

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