United States v. Queen , 16 F. App'x 194 ( 2001 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                             No. 00-4399
    MARK ALAN QUEEN,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the Western District of North Carolina, at Charlotte.
    Graham C. Mullen, Chief District Judge.
    (CR-98-7-MU)
    Submitted: July 26, 2001
    Decided: August 7, 2001
    Before LUTTIG and WILLIAMS, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    George V. Laughrun, II, GOODMAN, CARR, NIXON,
    LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina, for
    Appellant. Mark T. Calloway, United States Attorney, Gretchen C. F.
    Shappert, Assistant United States Attorney, Charlotte, North Carolina,
    for Appellee.
    2                       UNITED STATES v. QUEEN
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Mark Alan Queen pled guilty to conspiracy to distribute and pos-
    sess with intent to distribute cocaine and crack cocaine, in violation
    of 
    21 U.S.C.A. § 841
    (a)(1) (West 1999). The district court sentenced
    him to a 135-month prison term. On appeal, Queen challenges his
    sentence on the ground that the Government engaged in prosecutorial
    misconduct when it failed to move for a substantial assistance down-
    ward departure under U.S. Sentencing Guidelines Manual § 5K1.1,
    p.s. (1998). We affirm.
    Queen first contends that he provided substantial assistance, which
    obligated the Government to move for a downward departure on that
    ground. Queen’s plea agreement provided that whether to make a sub-
    stantial assistance motion was within the Government’s sole discre-
    tion, and Queen acknowledged that he understood that provision.
    Where the Government retains its discretion regarding whether it will
    make a substantial assistance motion, there is "no enforceable prom-
    ise" because the plea agreement "explicitly reserv[ed] discretion
    rather than promising anything." United States v. Wallace, 
    22 F.3d 84
    ,
    87 (4th Cir. 1994). The Government, therefore, was not obligated to
    file a § 5K1.1 motion.1
    In the absence of a Government motion for a substantial assistance
    downward departure, a court may review the prosecutor’s decision
    not to move for a departure only if the refusal is based on an unconsti-
    1
    Even assuming that the Government was obligated to move for a
    downward departure for substantial assistance, the Government was
    released from its obligation when Queen continued to distribute drugs
    while on pretrial release. See United States v. David, 
    58 F.3d 113
    , 115
    (4th Cir. 1995) (finding that government’s obligation to file substantial
    assistance motion ended when defendant breached terms of plea agree-
    ment by jumping bail and failing to appear in court).
    UNITED STATES v. QUEEN                         3
    tutional motive, such as race or religion, or is not rationally related
    to a permissible government objective. United States v. LeRose, 
    219 F.3d 335
    , 341-42 (4th Cir. 2000) (citing Wade v. United States, 
    504 U.S. 181
    , 185-86 (1992)). Queen argues that the Government’s reli-
    ance on the results of a polygraph examination, which indicated that
    he lied about distributing drugs while released on bond, amounted to
    an unconstitutional motive because such results would have been
    inadmissible at trial. Queen, however, cites no authority to support his
    argument, and we have found none. We therefore find that the district
    court did not clearly err in refusing to compel the Government to file
    a substantial assistance motion. United States v. Conner, 
    930 F.2d 1073
    , 1076 (4th Cir. 1991) (stating standard of review).
    Finally, to the extent that Queen asserts for the first time on appeal
    that the district court, in the absence of a § 5K1.1 motion, could have
    departed under U.S. Sentencing Guidelines Manual § 5K2.0 (1998)
    (containing the general provisions and policy statement for depar-
    tures), we reject his claim.2 United States v. Alegria, 
    192 F.3d 179
    ,
    189 (1st Cir. 1999) (holding that "a defendant’s assistance to the pros-
    ecutor cannot serve as the basis for a section 5K2.0 departure" and
    collecting cases adopting rule). Thus, the district court did not plainly
    err in failing to depart under § 5K2.0.
    Accordingly, we affirm. We dispense with oral argument because
    the facts and legal contentions are adequately presented in the materi-
    als before the court and argument would not aid the decisional pro-
    cess.
    AFFIRMED
    2
    As support for his argument, Queen relies on In re Sealed Case (Sen-
    tencing Guidelines’ "Substantial Assistance"), 
    149 F.3d 1198
    , 1204
    (D.C. Cir. 1998) (holding that "even where the government files no
    motion, Koon [v. United States, 
    518 U.S. 81
     (1996),] authorizes district
    courts to depart from the Guidelines based on a defendant’s substantial
    assistance where circumstances take the case out of the relevant guide-
    line heartland"), rehearing en banc granted and vacated in part, 
    159 F.3d 1362
     (D.C. Cir. 1998) (order). On rehearing, the court held that if
    the government does not file a motion under § 5K1.1, a district court
    does not have the authority to depart for substantial assistance under
    USSG § 5K2.0. In re Sealed Case No. 97-3112, 
    181 F.3d 128
    , 136-42
    (D.C. Cir.), cert. denied, 
    528 U.S. 989
     (1999)