UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5337

ARMON O'NEAL BEAVERS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5338

LARRY THOMAS WILLIAMS,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Abingdon.

Samuel G. Wilson, District Judge.

(CR-92-46)

Argued: March 5, 1996

Decided: April 8, 1996

Before RUSSELL and WIDENER, Circuit Judges, and

CHAPMAN, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Birg Eugene Sergent, Pennington Gap, Virginia, for

Appellant Beavers; Dennis Eugene Jones, Lebanon, Virginia, for

Appellant Williams. Julie C. Dudley, Assistant United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: Robert P.

Crouch, Jr., United States Attorney, Roanoke, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Appellants Armon O'Neal Beavers and Larry Thomas Williams

entered into plea agreements with the United States Attorney for the

Western District of Virginia. Williams pled guilty to Count 1 in the

indictment which charged conspiracy to distribute or to possess with

intent to distribute cocaine. Beavers' plea was to conspiracy to distribute or possess with intent to distribute and possession of an unregistered firearms silencer in violation of 26 U.S.C.§§ 5861(d) and

5871. Beavers was sentenced to serve 135 months on Count 1 and

120 months on Count 2 with the sentences to run concurrently. The

government filed a motion for a downward departure as to Williams

based upon his substantial assistance. The district court sentenced him

to 100 months and took under advisement the downward departure

motion. Later the court reduced this sentence to 48 months.

Both defendants appealed to this court claiming that the prosecutor

violated their respective plea agreements by failing to make the

required sentencing recommendations. In an unpublished opinion

filed January 18, 1995, this court vacated both sentences and

remanded for resentencing, because we found that the prosecutor

neglected to recommend to the district court that Beavers be sentenced at the low end of the guideline range as required by his plea

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agreement. As to Williams, the prosecutor recommended the district

court sentence Williams at the low end of the guideline range but did

not recommend to the district court that Williams receive a sentence

of 24 months as required by his plea agreement.

At the resentencing hearing held on April 24, 1995, Beavers was

resentenced to 108 months and Williams sentenced to 48 months.

Each defendant appeals claiming that the government still has not

lived up to its commitments under the plea agreements. Beavers contends that he bargained in good faith for a substantial assistance

reduction and complied with it so far as he was able. Williams contends that the government only partially lived up to the agreement

because the prosecutor did not make the sentencing court aware of the

value of the information given by Williams.

We find no merit in either appeal, and we affirm both sentences.

I.

Beavers contends that he provided substantial assistance by advising the government of the location of a boat and property which was

forfeited to the government. He contends that he was never given the

opportunity to provide further information and was thereby denied his

right to provide substantial assistance to the government as provided

by the plea agreement. This claim is totally lacking in merit. We

stated in the prior opinion, "We have reviewed the record and find

that the prosecutor did not violate the plea agreement in this respect,

because Beavers had not provided substantial assistance." The forfeiture of the boat and the property was not substantial assistance

because it was required by the plea agreement. As to his claim that

he was never debriefed by federal agents, he admitted to the district

court at his resentencing that he had not volunteered any information

to the government and had made no attempt to contact the government or to let the government know what information he had that it

could use.

The government lived up to its side of the bargain. Beavers was

allowed to plead guilty to only two of a ten count indictment. He

received a stipulation as to the drug weight, that he was not a leader

or organizer, that he was entitled to a three level credit for acceptance

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of responsibility and that he be sentenced at the low end of the guidelines. He was given the opportunity to provide substantial assistance.

This opportunity does not place an obligation upon the government

to debrief him or to seek out information. He is the one seeking the

downward departure, and he has the obligation to provide the information. At the resentencing in April 1995, he was again given this

opportunity and nothing of value was forthcoming. There was no

breach of the agreement by the government in this respect.

II.

Williams argues that the government breached its plea agreement

at the resentencing by failing to advise the court of the full nature and

extent of his assistance so the court could determine the appropriate

downward departure. He asserts that the prosecutor was not sufficiently enthusiastic in making the motion.

Williams relies upon United States v. Brown, 500 F.2d 375 (4th

Cir. 1974), but Brown is not applicable to the present facts. In Brown

a prosecutor, other than the one who made the plea agreement,

attended the sentencing hearing and made remarks indicating his reservations about the agreement to which the government had committed itself. In the present case, the prosecutor did everything that the

agreement required of him. This case is governed by United States v.

Benchimol, 471 U.S. 453 (1985), which holds that unless the government in the plea agreement binds itself to "enthusiastically" recommend to the sentencing court or to explain to the court its reasons for

making the recommendation, there is no obligation on the part of the

government to do so.

If a defendant wants enthusiasm from the prosecutor, this is something to be bargained for and included in the agreement.

Williams' guideline range was 100 to 125 months, and as a result

of the government's motion, this was reduced to 48 months. The sentencing judge understood the government's motion for a downward

departure to 24 months, but the court specifically found that Williams' substantial criminal record persuaded the court that a reduction

of 24 months was not warranted.

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III.

Both appellants contend that when these cases were remanded for

resentencing, we should have directed that a different district judge

conduct the resentencing, and assert that Santobello v. New York, 404

U.S. 257 (1971) and United States v. Peglegra , 33 F.3d 412 (4th Cir.

1994) require a different judge. Such action is not required on the

present facts. In Santobello and Peglegra, the prosecutor made recommendations directly contrary to the terms of the plea agreements

at the sentencing hearings. But, in the present cases we found that the

prosecutor had inadvertently neglected to recommend that Beavers be

sentenced at the low end of the guidelines and that Williams receive

a 24 month sentence. There has been no finding that the prosecutor

violated either plea agreement and the cases were not remanded on

this basis, so it was unnecessary to bring in a new judge.

For the reasons stated above, the sentences of both appellants are

AFFIRMED.

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