UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4016

JESSE HOFFMAN, III, a/k/a Arab,

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-01-15)

Submitted: January 9, 2004

Decided: January 23, 2004

Before WILKINSON and DUNCAN, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Brian Gay, GAY, CIPRIANO & ARRINGTON, P.C., Virginia

Beach, Virginia, for Appellant. John L. Brownlee, United States

Attorney, Nancy S. Healey, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Jesse Hoffman, III, pled guilty to conspiracy to distribute cocaine

base, in violation of 21 U.S.C. § 846 (2000), and using or carrying a

firearm during and in relation to a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2000). The district court sentenced Hoffman

to a total imprisonment term of 384 months and a five-year term of

supervised release. Hoffman contends on appeal that the district court

erred in failing to compel the Government to move for a substantial

assistance departure, pursuant to U.S. Sentencing Guidelines Manual

§ 5K1.1, p.s. (2002). Finding no reversible error, we affirm. 

A sentencing court may determine whether the government has

"bargained away its § 5K1.1 discretion," and if so, determine whether

the defendant has rendered substantial assistance under the plea

agreement. United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000).

This court held in Snow, however, that any waiver of the government’s discretion must be explicit, not implied, in the language of the

agreement. Id. When the Government does not promise a substantial

assistance motion in return for the defendant’s substantial assistance,

the defendant may compel the government to move for a substantial

assistance departure only if he makes a substantial threshold showing

that the government’s decision was based on an unconstitutional

motive or was unrelated to a legitimate government end. Wade v.

United States, 504 U.S. 181, 185-86 (1992). Because Hoffman did not

object at sentencing to the Government’s failure to move for a substantial assistance departure, Hoffman’s claim is reviewed for plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993) (providing standard for plain error review). 

Because the Government specifically stated in the plea agreement

that the determination regarding whether Hoffman provided substantial assistance was within its sole discretion, we conclude that the

2 UNITED STATES v. HOFFMAN
Government did not explicitly waive its discretion to determine substantial assistance and therefore, did not breach the plea agreement by

failing to move for a substantial assistance departure. Further, there

was no evidence (and Hoffman does not argue) that the Government’s

decision not to move for a substantial assistance departure was based

on an unconstitutional motive or was unrelated to a legitimate government end. Therefore, the district court did not err in failing to compel

the Government to move for a substantial assistance departure. 

Accordingly, we affirm Hoffman’s 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

UNITED STATES v. HOFFMAN 3