UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 94-5492

MICHAEL BLAKELY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-93-36)

Submitted: February 7, 1996

Decided: February 29, 1996

Before MURNAGHAN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William E. Martin, Federal Public Defender, John Stuart Bruce, Dep-
uty Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Mark T. Calloway, United States Attorney, Kenneth D. Bell,
First Assistant United States Attorney, Thomas G. Walker, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Michael Blakely pled guilty in 1994 to conspiracy to possess with
intent to distribute and to distribute heroin, 21 U.S.C. § 846 (1988)
and money laundering 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956
(a)(1)(B)(i) (1988). He contends that the district court erred in grant-
ing the government's motion to rescind the plea agreement on the
grounds that he had materially breached the terms of that agreement.
We affirm.

Blakely was indicted in February 1993 for multiple counts of drug
trafficking and money laundering. In August 1993, Blakely entered
into a plea agreement with the government in which he agreed to
plead guilty to Counts One and Four. Provision (3) of the plea agree-
ment provided that "[i]n the event the defendant fails to strictly follow
this Plea Agreement, the said Agreement shall become null and void,
except that the plea of guilty by the defendant and the resulting guilty
verdict shall stand." One of the conditions stated in the plea agree-
ment was that "[t]he defendant shall not violate any federal, state or
local law, or any order of any court including any conditions of pre-
trial release."

In January 1994, the government filed a motion to declare the plea
agreement null and void on the grounds that Blakely had violated
state and federal law three times; specifically, that he was arrested in
April 1993 for second degree trespass and that he was arrested twice
in December 1993, once for gambling and once for two counts of traf-
ficking in heroin. At Blakely's sentencing hearing, the district court
found that there was unrefuted evidence that Blakely had violated the
terms of the plea agreement and rescinded the agreement. Blakely
appeals, maintaining that the district court erred by relieving the gov-
ernment from its obligation to file a motion for a downward depar-
ture. United States Sentencing Commission, Guidelines Manual
§ 5K1.1 (Nov. 1994).

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Because Blakely materially breached the terms of the plea agree-
ment, the government was no longer obligated to move for a down-
ward departure based upon that agreement. See United States v.
David, 58 F.3d 113 (4th Cir. 1995); see also United States v. West,
2 F.3d 66, 69 (4th Cir. 1993) (defendant who breaches terms of plea
agreement forfeits any right to its enforcement). Although we grant
Blakely's motion to file a supplemental appendix, the sentence
imposed by the district court is accordingly affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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