                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-4016
JESSE HOFFMAN, III, a/k/a Arab,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Western District of Virginia, at Charlottesville.
           James H. Michael, Jr., Senior District Judge.
                           (CR-01-15)

                      Submitted: January 9, 2004

                      Decided: January 23, 2004

     Before WILKINSON and DUNCAN, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Brian Gay, GAY, CIPRIANO & ARRINGTON, P.C., Virginia
Beach, Virginia, for Appellant. John L. Brownlee, United States
Attorney, Nancy S. Healey, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee.
2                     UNITED STATES v. HOFFMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Jesse Hoffman, III, pled guilty to conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 846 (2000), and using or carrying a
firearm during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2000). The district court sentenced Hoffman
to a total imprisonment term of 384 months and a five-year term of
supervised release. Hoffman contends on appeal that the district court
erred in failing to compel the Government to move for a substantial
assistance departure, pursuant to U.S. Sentencing Guidelines Manual
§ 5K1.1, p.s. (2002). Finding no reversible error, we affirm.

   A sentencing court may determine whether the government has
"bargained away its § 5K1.1 discretion," and if so, determine whether
the defendant has rendered substantial assistance under the plea
agreement. United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000).
This court held in Snow, however, that any waiver of the govern-
ment’s discretion must be explicit, not implied, in the language of the
agreement. Id. When the Government does not promise a substantial
assistance motion in return for the defendant’s substantial assistance,
the defendant may compel the government to move for a substantial
assistance departure only if he makes a substantial threshold showing
that the government’s decision was based on an unconstitutional
motive or was unrelated to a legitimate government end. Wade v.
United States, 504 U.S. 181, 185-86 (1992). Because Hoffman did not
object at sentencing to the Government’s failure to move for a sub-
stantial assistance departure, Hoffman’s claim is reviewed for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993) (provid-
ing standard for plain error review).

   Because the Government specifically stated in the plea agreement
that the determination regarding whether Hoffman provided substan-
tial assistance was within its sole discretion, we conclude that the
                      UNITED STATES v. HOFFMAN                        3
Government did not explicitly waive its discretion to determine sub-
stantial assistance and therefore, did not breach the plea agreement by
failing to move for a substantial assistance departure. Further, there
was no evidence (and Hoffman does not argue) that the Government’s
decision not to move for a substantial assistance departure was based
on an unconstitutional motive or was unrelated to a legitimate govern-
ment end. Therefore, the district court did not err in failing to compel
the Government to move for a substantial assistance departure.

   Accordingly, we affirm Hoffman’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                           AFFIRMED
