UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4608

RODRICK DAJAUNA DULA, a/k/a

Rodrick Duane Dula,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-7091

RODRICK DAJAUNA DULA, a/k/a

Rodrick Duane Dula,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-98-282-V, CA-00-188-5-1)

Submitted: April 19, 2002

Decided: May 3, 2002

Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.

No. 01-4608 affirmed and No. 01-7091 dismissed by unpublished per

curiam opinion. 
COUNSEL

Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, North

Carolina, for Appellant; Rodrick Dajauna Dula, Appellant Pro Se.

Robert J. Conrad, Jr., United States Attorney, Brian Lee Whisler,

Assistant United States Attorney, Charlotte, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

In No. 01-4608, Rodrick Dajauna Dula appeals his conviction for

conspiracy to possess with intent to distribute, and distribution of,

cocaine base, in violation of 21 U.S.C.A. § 846 (West 1999), and his

sentence of 188 months’ imprisonment. In No. 01-7091, Dula appeals

the district court’s order granting in part and denying in part his 28

U.S.C.A. § 2255 (West Supp. 2001) motion. With respect to No. 01-

4608, we affirm Dula’s conviction and sentence. With respect to No.

01-7091, we deny a certificate of appealability and dismiss the appeal.

Following a Federal Rule of Criminal Procedure 11 hearing, the

district court accepted Dula’s plea of guilty to conspiracy to possess

with intent to distribute cocaine base. The Government declined to

move for a departure from the Guidelines under U.S. Sentencing

Guidelines Manual § 5K1.1 (2000). The district court denied Dula’s

motion for departure under U.S.S.G. § 5K2.0 and sentenced him to

the minimum term of imprisonment, as calculated under the Sentencing Guidelines, of 188 months, supervised release for five years, and

a special assessment of $100. 

Dula filed a motion pursuant to 28 U.S.C.A. § 2255, asserting

claims of ineffective assistance of counsel and violation of Apprendi

2 UNITED STATES v. DULA
v. New Jersey, 530 U.S. 466 (2000). The Government filed a motion

for summary judgment. The district court granted in part and denied

in part Dula’s § 2255 motion and the Government’s motion for summary judgment, dismissing all of Dula’s claims except for his ineffective assistance of counsel claim based upon his counsel’s failure to

file an appeal. The district court then vacated the criminal judgment

and entered a new judgment with the same sentence and conditions

from which Dula could file a direct appeal. Dula noted timely appeals

both from his conviction and sentence and from the district court’s

judgment as to his § 2255 motion. 

In the appellate brief prepared by counsel in No. 01-4608, Dula

contends that the Government breached its agreement to file a motion

for downward departure pursuant to U.S.S.G. § 5K1.1 after preventing him from providing additional information which could have

amounted to substantial assistance. Dula’s plea agreement, however,

contained no unconditional promise to file a motion for downward

departure but instead left the decision to the Government’s discretion.

Dula makes no claim that the Government’s refusal to grant a downward departure was based upon an unconstitutional motive. See Wade

v. United States, 504 U.S. 181, 185-86 (1992); United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994). Furthermore, the Government

presented objective support for its decision to withhold the § 5K1.1

motion, and Dula has failed to demonstrate that the Government acted

in bad faith. See United States v. Snow, 234 F.3d 187, 190-91 (4th

Cir. 2000). Accordingly, we hold that the district court did not err in

concluding that the Government did not breach the plea agreement.

Therefore, we affirm Dula’s conviction and sentence in No. 01-4608.

In No. 01-7091, Dula argues that the district court erred by partially dismissing his § 2255 motion, contending that his sentence violates Apprendi and that his counsel was ineffective in regard to his

guilty plea. We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of

appealability and dismiss Dula’s appeal of the denial of his § 2255

motion in No. 01-7091 on the reasoning of the district court. See

United States v. Dula, Nos. CR-98-282; CA-00-188-5-1 (W.D.N.C.

May 31, 2001). 

UNITED STATES v. DULA 3
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. 

No. 01-4608 - AFFIRMED

No. 01-7091 - DISMISSED

4 UNITED STATES v. DULA