                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 03-4943



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


VIRGIL WICKS,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-01-10)


Submitted:   August 27, 2004             Decided:   September 23, 2004


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


M. Timothy Porterfield, Charlotte, North Carolina, for Appellant.
Robert J. Conrad, Jr., United States Attorney, C. Nicks Williams,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Virgil Wicks pleaded guilty to conspiracy to possess with

intent to distribute methamphetamine, 21 U.S.C. § 846 (2000).

Wicks was sentenced to 121 months in prison.              He now appeals,

claiming that, because he provided substantial assistance to the

United States, the prosecutor should have moved for a downward

departure pursuant to U.S. Sentencing Guidelines Manual § 5K1.1

(2003).    We affirm.

               As part of his plea agreement, Wicks waived his right to

challenge his conviction and sentence on direct appeal or in a

collateral proceeding.         The waiver did not apply, however, to

claims    of    ineffective   assistance   of   counsel   or   prosecutorial

misconduct.

               To the extent that Wicks’ claim alleges prosecutorial

misconduct and is therefore cognizable on appeal, the claim lacks

merit. His plea agreement clearly stated that the decision whether

to move for a departure based on substantial assistance lay within

the sole discretion of the United States.         Thus, the United States

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).      There is no indication that the United States

refused to make a motion based on an unconstitutional motive.           See

Wade v. United States, 504 U.S. 181, 185-86 (1992).            Finally, the

United States informed the court at sentencing that it did not


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intend to move for downward departure because, shortly after Wicks’

release on bond, he violated the terms of that bond. Under this

circumstance, there was no error in the United States’ decision not

to make a USSG § 5K1.1 motion.   See United States v. David, 58 F.3d

113, 114-15 (4th Cir. 1995).

          We accordingly affirm.     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




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