UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4019

CHARLES H. MCGUIRE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-95-131)

Submitted: April 7, 1998

Decided: April 27, 1998

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

G. William Bills, Jr., Pittsburgh, Pennsylvania, for Appellant.
Rebecca A. Betts, United States Attorney, Miller A. Bushong III,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Charles H. McGuire, Jr., appeals his conviction and sentence for
conspiracy to launder money instruments, in violation of 18 U.S.C.A.
§ 1956 (West Supp. 1998). In 1995, McGuire was charged in a nine-
count indictment with money laundering and conspiracy to launder
monetary instruments. McGuire, a drug dealer, had opened a heavy
equipment business in Spencer, West Virginia, as a shell for hiding
the proceeds of his drug business. He directed the secretary of the
company to create invoices for goods and services supplied to ficti-
tious customers, and gave her large amounts of cash to deposit for
those invoices. At about the same time as the West Virginia indict-
ments, McGuire was arrested in the Western District of Pennsylvania
on federal drug charges.

McGuire entered into a plea agreement with the Government.
McGuire would plead guilty to the conspiracy charge, and the Gov-
ernment would move the court to dismiss the remaining counts.
McGuire agreed to cooperate with the Government in all inquiries and
give signed, sworn statements and grand jury and trial testimony on
request. According to the agreement, the Government had made no
representations or promises as to sentencing, but reserved the right to
advise the court of the nature and extent of McGuire's cooperation
and of his acceptance of responsibility. The plea agreement stated that
there were no other agreements or understanding between the parties
outside the document.

At the Fed. R. Crim. P. 11 hearing, McGuire agreed that the plea
agreement, which was read into the record, was an accurate statement
and that he understood and approved it. McGuire denied that there
had been any promises of leniency or light sentence; he again stated
that there were no other promises outside the plea agreement.

At sentencing, counsel for McGuire alleged that under the plea
agreement the Government was obligated to make a motion for sub-
stantial assistance pursuant to U.S. Sentencing Commission Guide-
lines Manual § 5K1.1 (1995). The Government responded that
although McGuire had assisted law enforcement officers in the West-

                    2
ern District of Pennsylvania and the Northern District of West Vir-
ginia he had been minimally available to law enforcement officers in
the Southern District of West Virginia, and that he had begun to deny
his culpability and minimize his role in any criminal activity, thereby
undermining his credibility as a potential witness. The Government
therefore declined to make the motion and denied that it was obli-
gated to do so.

The district court held an evidentiary hearing on the issue, in which
the prosecutor and both defense counsel testified. The court found
that the Government had agreed only to consider any assistance
McGuire rendered and evaluate whether a substantial assistance
motion was warranted. In addition, the court found that there was no
contract regarding the filing of a motion for substantial assistance,
and that the Government's decision not to file such a motion was
reached in good faith, based on McGuire's untruthfulness and result-
ing lack of credibility regarding his role in the offense.

McGuire was sentenced to seventy-two months imprisonment fol-
lowed by three years of supervised release. The district court sen-
tenced at the low end of the guideline range because of McGuire's
cooperation in the other districts. McGuire appeals, asserting that the
Government was obliged to file a downward departure motion in view
of the substantial assistance he rendered.

If the Government promises in a plea agreement to make a § 5K1.1
motion in return for substantial assistance, such a promise is enforce-
able. United States v. Conner, 930 F.2d 1073, 1075 (4th Cir. 1991).
The district court's task is to decide if the Government has in fact
agreed to make such a motion in return for substantial assistance and,
if so, whether substantial assistance has been rendered. (Id.) These
issues of fact are reviewable under a clearly erroneous standard. Id.
at 1076. Any principles of contract interpretation applied to the facts
are reviewed de novo. United States v. Martin , 25 F.3d 211, 217 (4th
Cir. 1994).

The Supreme Court has held that in the absence of a government
motion a sentencing court cannot grant a downward departure for sub-
stantial assistance unless the government has committed itself in a
plea agreement to do so or defendant establishes that the govern-

                    3
ment's refusal to make such a motion was based on an unconstitu-
tional motive. Wade v. United States, 504 U.S. 181, 185-86 (1992).
Here, the district court found that the plea agreement did not bind the
Government to make such a motion, and this finding is not erroneous.
The plea agreement contains no reference to a substantial assistance
motion. According to the agreement, there were no outside conditions
or understandings. The district court found as a fact that the Govern-
ment had agreed only to consider filing a motion, and this finding is
not clearly erroneous. There is no suggestion of unconstitutional
motive. Therefore, McGuire's claim entitles him to no relief.

We affirm McGuire's 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

                    4
