UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-7109

MARY BROWN DALE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Graham C. Mullen, District Judge.

(CR-91-15-ST-MU, CA-95-104-5-MU)

Submitted: March 17, 1998

Decided: March 30, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Marcia G. Shein, Atlanta, Georgia, for Appellant. Mark T. Calloway,

United States Attorney, Brian L. 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Unpublished opinions are not binding precedent in this circuit.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:

Mary Brown Dale pled guilty to conspiracy to possess with intent

to distribute between one thousand and three thousand kilograms of

marijuana, 21 U.S.C. § 846 (1994). She was sentenced to 132 months'

imprisonment. Dale did not appeal her conviction or sentence, but

filed a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997),

contending that the Government breached the plea agreement by failing to move for a downward departure and contending that she

received ineffective assistance of counsel. The district court denied

both claims but granted a certificate of appealability. Dale timely

noted an appeal from the district court's order. We find no merit to

her claims.

Dale contends that the Government breached the plea agreement by

acting in bad faith and failing to file either a motion for a downward

departure under U.S. Sentencing Guidelines Manual § 5K1.1 (1991),

or a motion to reduce her sentence under Fed. R. Crim. P. 35, in light

of Dale's substantial assistance. The district court may inquire into

the reason for the government's decision not to move for a departure

for substantial assistance only if there is proof that the plea agreement

has been breached or that the government's decision was based on an

unconstitutional motive, such as racial or religious bias. See United

States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994) (citing Wade v.

United States, 504 U.S. 181, 185-87 (1992)). Dale's plea agreement

reserves to the Government the sole discretion to decide whether to

file a motion for a downward departure based upon substantial assistance. The plea agreement states:

By virtue of this Plea Agreement the defendant, MARY

BROWN DALE, agrees to provide truthful information

about any and all criminal activity within her knowledge

. . . . When and if said assistance has been completed the

government, in good faith and in its sole discretion, shall

determine whether said assistance has been substantial.

Upon a determination that the defendant has rendered substantial assistance the government shall make a motion pursuant to § 5K1.1 if prior to imposition of sentence, or a

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motion pursuant to Federal Rule of Criminal Procedure 35,

if within one year from imposition of sentence, recommending a downward departure from the Sentencing Guidelines

to a level 25.

The Government did not breach the plea agreement by failing to

move for a reduction because the agreement contained no unconditional promise and therefore, created no enforceable obligation on the

part of the Government. See id.

Because the decision to move for a downward departure was within

the sole discretion of the Government, the decision is not reviewable

unless the Government based its decision upon an unconstitutional

factor, such as race. See Wade v. United States , 504 U.S. 181, 185-87

(1992). Although Dale contends that the Government's decision was

made in bad faith and that she did in fact provide substantial assistance to the Government, there is no evidence that the Government's

failure to move for a departure was based on an unconstitutional

motive. Accordingly, the Government's decision is not subject to

review. See id.

Dale also alleges that she received ineffective assistance of counsel

because her attorney failed to investigate her mental health background. In addition, she contends that counsel failed to alert the sentencing court that she suffered from a nervous condition that may

have warranted consideration of a downward departure or mitigation

of sentence for diminished mental capacity under USSG §§ 5K2.0,

5K2.13, 5H1.3 (1991). To state a claim of ineffective assistance of

counsel in the context of a guilty plea, Dale must establish that her

attorney's performance fell below objective standards of reasonableness and that there is a reasonable probability that but for counsel's

errors, she would not have pled guilty. See Hill v. Lockhart, 474 U.S.

52, 58-59 (1985); Strickland v. Washington, 466 U.S. 668, 687-94

(1984). Dale failed to establish either element.

Dale's trial counsel filed an affidavit in which he stated that he did

not notify the court of Dale's mental condition at sentencing because

he was unaware of the condition until family members informed him

of it sometime after Dale was incarcerated. Counsel also stated that

he had some concerns about whether Dale was "coping with her situa-

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tion in an appropriate fashion;" however, he had no way of knowing

the severity of her problems at the time of the proceedings. As the district court properly noted, Dale provided no medical proof of her condition. The presentence report stated only that she was diagnosed with

chronic anxiety neurosis and that she had been treated with Valium.

In addition, Dale stated under oath during sentencing that she had

never been treated for mental illness. Dale does not allege that she

would not have pled guilty had counsel discovered her alleged diminished capacity, nor has she established that even had counsel discovered her condition and notified the court, her condition would have

warranted a downward departure in her sentence. In light of these

facts, we find that counsel's performance was not objectively unreasonable and that Dale was not prejudiced by counsel's actions. See

Strickland, 466 U.S. at 687-94.

We affirm the district court's order. 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

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