United States v. Parker , 27 F. App'x 148 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4305
PAULETTE SIMPSON PARKER,
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-00-21)
Submitted: September 25, 2001
Decided: October 12, 2001
Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph A. Sanzone, SANZONE & BAKER, Lynchburg, Virginia, for
Appellant. Ruth E. Plagenhoef, United States Attorney, Ray B. Fitz-
gerald, Jr., Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PARKER
OPINION
PER CURIAM:
Paulette Parker entered a guilty plea to conspiracy to distribute
more than five grams of cocaine base (crack), 21 U.S.C. § 846 (1994),
and was sentenced to the statutorily required minimum term of sixty
months imprisonment. Parker appeals her sentence, arguing that the
district court erred in refusing to consider the substantial assistance
motion filed in her husband’s case as equally applicable in her case.
We affirm.
Parker and her husband, Jermaine, distributed crack to informants
on multiple occasions. After they were arrested, Jermaine cooperated.
At his sentencing, the government requested a downward departure
for substantial assistance pursuant to U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2000) (authorizing a sentence below the guide-
line range), and 18 U.S.C.A. § 3553(e) (West 2000) (authorizing a
departure below the mandatory minimum sentence). The government
did not move for a departure in Parker’s case because she provided
no useful information and, although she was free on bond prior to
sentencing, she did not attempt to cooperate or assist the government
during that time. Parker argued that the § 5K1.1 motion filed in her
husband’s case should be considered in her case as well because (1)
her case was so closely connected to her husband’s case that a sort
of marital privilege should apply, (2) she lacked the valuable informa-
tion he possessed, and (3) she had encouraged him to cooperate.* The
district court determined that Parker had no marital right to benefit
from the § 5K1.1 motion filed in Jermaine’s case and that it had no
authority to inquire into the government’s decision not to file a
motion in her case because there was no evidence that the govern-
ment’s decision was based on an unconstitutional motive.
We find no error in the district court’s decision. The appeals court
lacks authority to review the district court’s decision not to depart
downward unless the court’s decision is based on a mistaken belief
that it lacks authority to depart. United States v. Edwards, 188 F.3d
*Parker’s testimony at sentencing did not establish that her husband’s
cooperation was due solely to her influence.
UNITED STATES v. PARKER 3
230, 238-39 (4th Cir. 1999), cert. denied, 528 U.S. 1130 (2000). Par-
ker does not contend that the district court failed to understand its
authority to depart on the ground she urged, but that the district court
ought to have the authority to depart based on her husband’s coopera-
tion and the § 5K1.1 motion filed in his case. We cannot so hold.
When the government has not obligated itself to move for a substan-
tial assistance departure, the district court may review the prosecu-
tor’s refusal to move for a departure only if the defendant makes a
substantial threshold showing that the government’s decision was
based on an unconstitutional motive. Wade v. United States, 504 U.S.
181, 185-86 (1992); see also United States v. LeRose, 219 F.3d 335,
342 (4th Cir. 2000). Parker did not assert in the district court that the
government had any unconstitutional motive for deciding not to move
for a departure in her case, and she does not make that argument on
appeal. The record contains no evidence that would support such a
finding. Consequently, Parker has not shown that the district court
erred in finding that she was not entitled to benefit from the motion
filed in her husband’s case.
We therefore affirm the 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