UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                        No. 97-4664
DARRIN LAVON WILLIAMS, a/k/a
Sewage,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-374)

Submitted: June 30, 1998

Decided: July 16, 1998

Before ERVIN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael G. Nettles, NETTLES, TURBEVILLE & REDDECK, Lake
City, South Carolina, for Appellant. J. Rene Josey, United States
Attorney, William E. Day, II, Assistant United States Attorney, Flor-
ence, 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Unpublished opinions are not binding precedent in this circuit.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:

Darrin Lavon Williams pled guilty to conspiracy to possess mari-
juana, cocaine, and cocaine base (crack) with intent to distribute, 21
U.S.C. § 846 (1994), and received a sentence of 188 months impris-
onment. He appeals his sentence, arguing that the district court erred
in refusing to compel the government to move for a substantial assis-
tance departure under USSG § 5K1.1, p.s.,* and in calculating his
criminal history. We affirm.

Under the terms of Williams' plea agreement, the government
promised to move for a substantial assistance departure if Williams
should cooperate "and that cooperation is deemed by Attorneys for
the Government as providing substantial assistance in the investiga-
tion or prosecution of another person who has committed an offense."
Williams attempted to cooperate. He was interviewed several times
and tried to make controlled purchases of drugs but was unsuccessful.
Despite his efforts, the government did not move for a departure. The
case agent testified at the sentencing hearing that the information Wil-
liams provided had not proved useful in the investigation or prosecu-
tion of anyone else. The district court found no evidence that the
government had acted in bad faith in exercising its discretion not to
move for a departure.

On appeal, Williams argues that he provided substantial assistance
which the government failed to use, and that, as a result, the govern-
ment's decision not to move for a departure was not rationally related
to a legitimate government purpose. See Wade v. United States, 504
U.S. 181, 186-87 (1992) (prosecutor's discretion under USSG
§ 5K1.1 subject to constitutional limitations). However, a defendant
seeking relief on this basis must make a showing of unconstitutional
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*U.S. Sentencing Guidelines Manual (1995).

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motive on the part of the government. See id. at 186. This Williams
failed to do. Consequently, the district court did not err in refusing to
compel the government to move for a departure.

Williams' second claim is that the district court should have com-
puted his criminal history score based on the time he served in cus-
tody for a number of prior offenses, rather than on the sentence
imposed. He concedes that the sentencing guidelines provide that
criminal history points are calculated based on the sentence imposed,
not time served. See USSG § 4A1.2(b), comment. (n.2). We find that
the district court properly calculated Williams' criminal history score.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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