UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                    No. 99-4707
BASCOMB WILLIAM BEST, a/k/a
William Bascomb Best,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lyle E. Strom, Senior District Judge, sitting by designation.
(CR-98-20)

Submitted: May 31, 2000

Decided: September 14, 2000

Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ashley Lee Hogewood, III, KENNEDY, COVINGTON, LOBDELL
& HICKMAN, L.L.P., Raleigh, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Bascomb William Best pled guilty to being an accessory after the
fact to a federal offense, see 18 U.S.C.§ 3 (1994), and was sentenced
to a term of twenty-one months imprisonment, followed by a three-
year term of supervised release. Best appeals his conviction, alleging
that the district court erred in accepting his guilty plea. He also
appeals his sentence, contending that the court erred in denying his
motion for a downward departure and refusing to compel the govern-
ment to move for a departure under U.S. Sentencing Guidelines Man-
ual § 5K1.1, p.s. (1998). We affirm.*

I.

Best was charged with being an accessory after the fact by assisting
Michael McAnulty to hinder his apprehension, trial, and punishment,
while "knowing that an offense against the United States had been
committed by" McAnulty, specifically, (1) assault with a dangerous
weapon on postal employees, (2) carrying a firearm during and in
relation to a crime of violence, and (3) being a convicted felon in pos-
session of a firearm. Best had helped dispose of stolen items and
McAnulty's shotgun after McAnulty robbed a drugstore containing a
post office sub-station.
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*Even though Best has been released from prison, the appeal of his
conviction is not moot. See Carafas v. LaValee , 391 U.S. 234, 237-38
(1968) (expiration of sentence while conviction awaiting appellate
review did not moot appeal because of substantial interest in discharging
burdens flowing from conviction). The appeal of the sentence is not moot
because the court could have imposed a sentence with no supervised
release if it had departed to a sentence of less than one year of imprison-
ment. See United States v. Eske, 925 F.2d 205, 206 n.1 (7th Cir. 1991);
18 U.S.C.A. § 3583(a) (West Supp. 2000); USSG§ 5D1.1(a).

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Best terminated his first guilty plea hearing. At the second hearing,
the district court judge refused to accept his guilty plea because Best
steadfastly maintained that he had not known that McAnulty robbed
postal employees or used a gun in the robbery. However, Best did
admit that he knew McAnulty had been in jail and that he "could
assume" McAnulty was a felon when he agreed to, and attempted to,
dispose of McAnulty's firearm. At the third Fed. R. Crim. P. 11 hear-
ing, Best stated that he was guilty without qualification and made no
objection to the factual basis presented by the government. He now
claims that the court erred in failing to ascertain that he knew
McAnulty had committed a federal offense when he offered his assis-
tance.

The indictment charged in the disjunctive that Best assisted
McAnulty while knowing that he had committed three federal
offenses; the third offense was being a felon in possession of a fire-
arm. To establish Best's guilt, the government had to prove that Best
knew that McAnulty had "engaged in conduct that satisfied the essen-
tial elements of the primary federal offense." United States v. Graves,
143 F.3d 1185, 1186 (9th Cir. 1998). Graves further explains that,
"the accessory must know that the offender had engaged in the con-
duct that constitutes the federal offense--though not necessarily that
such conduct constitutes a federal offense." Id.

Here, Best's admissions at the second Rule 11 hearing were suffi-
cient to establish that Best assisted McAnulty in avoiding prosecution
for being a felon in possession of a firearm. At the third hearing, in
the absence of any statement by Best that might call his guilt into
question, we cannot find that the district court erred in accepting
Best's guilty plea.

II.

When a defendant enters a guilty plea, as Best did, without a plea
agreement that obligates the government to move for a departure if
the defendant provides substantial assistance, the district court may
review the government's decision not to move for a departure only if
the decision is based on an unconstitutional motive or is not rationally
related to any legitimate government objective. See Wade v. United
States, 504 U.S. 181, 185-86 (1992). If neither of these exceptions

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applies, the fact that the defendant actually provided substantial assis-
tance is not enough to compel the motion. Id. at 186. Best argues that
the government's decision not to move for a departure because of his
bond violation was unrelated to a legitimate government end because
he had already been punished by having his bond revoked. However,
we find that the government's reluctance to move for a sentence
reduction after the defendant's violation of a court order is rationally
related to a legitimate government objective.

We therefore affirm the conviction and sentence. 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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