UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4019

CHARLES H. MCGUIRE, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-95-131)

Submitted: April 7, 1998

Decided: April 27, 1998

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

G. William Bills, Jr., Pittsburgh, Pennsylvania, for Appellant.

Rebecca A. Betts, United States Attorney, Miller A. Bushong III,

Assistant United States Attorney, Charleston, West Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Charles H. McGuire, Jr., appeals his conviction and sentence for

conspiracy to launder money instruments, in violation of 18 U.S.C.A.

§ 1956 (West Supp. 1998). In 1995, McGuire was charged in a ninecount indictment with money laundering and conspiracy to launder

monetary instruments. McGuire, a drug dealer, had opened a heavy

equipment business in Spencer, West Virginia, as a shell for hiding

the proceeds of his drug business. He directed the secretary of the

company to create invoices for goods and services supplied to fictitious customers, and gave her large amounts of cash to deposit for

those invoices. At about the same time as the West Virginia indictments, McGuire was arrested in the Western District of Pennsylvania

on federal drug charges.

McGuire entered into a plea agreement with the Government.

McGuire would plead guilty to the conspiracy charge, and the Government would move the court to dismiss the remaining counts.

McGuire agreed to cooperate with the Government in all inquiries and

give signed, sworn statements and grand jury and trial testimony on

request. According to the agreement, the Government had made no

representations or promises as to sentencing, but reserved the right to

advise the court of the nature and extent of McGuire's cooperation

and of his acceptance of responsibility. The plea agreement stated that

there were no other agreements or understanding between the parties

outside the document.

At the Fed. R. Crim. P. 11 hearing, McGuire agreed that the plea

agreement, which was read into the record, was an accurate statement

and that he understood and approved it. McGuire denied that there

had been any promises of leniency or light sentence; he again stated

that there were no other promises outside the plea agreement.

At sentencing, counsel for McGuire alleged that under the plea

agreement the Government was obligated to make a motion for substantial assistance pursuant to U.S. Sentencing Commission Guidelines Manual § 5K1.1 (1995). The Government responded that

although McGuire had assisted law enforcement officers in the West-

 2
ern District of Pennsylvania and the Northern District of West Virginia he had been minimally available to law enforcement officers in

the Southern District of West Virginia, and that he had begun to deny

his culpability and minimize his role in any criminal activity, thereby

undermining his credibility as a potential witness. The Government

therefore declined to make the motion and denied that it was obligated to do so.

The district court held an evidentiary hearing on the issue, in which

the prosecutor and both defense counsel testified. The court found

that the Government had agreed only to consider any assistance

McGuire rendered and evaluate whether a substantial assistance

motion was warranted. In addition, the court found that there was no

contract regarding the filing of a motion for substantial assistance,

and that the Government's decision not to file such a motion was

reached in good faith, based on McGuire's untruthfulness and resulting lack of credibility regarding his role in the offense.

McGuire was sentenced to seventy-two months imprisonment followed by three years of supervised release. The district court sentenced at the low end of the guideline range because of McGuire's

cooperation in the other districts. McGuire appeals, asserting that the

Government was obliged to file a downward departure motion in view

of the substantial assistance he rendered.

If the Government promises in a plea agreement to make a § 5K1.1

motion in return for substantial assistance, such a promise is enforceable. United States v. Conner, 930 F.2d 1073, 1075 (4th Cir. 1991).

The district court's task is to decide if the Government has in fact

agreed to make such a motion in return for substantial assistance and,

if so, whether substantial assistance has been rendered. (Id.) These

issues of fact are reviewable under a clearly erroneous standard. Id.

at 1076. Any principles of contract interpretation applied to the facts

are reviewed de novo. United States v. Martin , 25 F.3d 211, 217 (4th

Cir. 1994).

The Supreme Court has held that in the absence of a government

motion a sentencing court cannot grant a downward departure for substantial assistance unless the government has committed itself in a

plea agreement to do so or defendant establishes that the govern-

 3
ment's refusal to make such a motion was based on an unconstitutional motive. Wade v. United States, 504 U.S. 181, 185-86 (1992).

Here, the district court found that the plea agreement did not bind the

Government to make such a motion, and this finding is not erroneous.

The plea agreement contains no reference to a substantial assistance

motion. According to the agreement, there were no outside conditions

or understandings. The district court found as a fact that the Government had agreed only to consider filing a motion, and this finding is

not clearly erroneous. There is no suggestion of unconstitutional

motive. Therefore, McGuire's claim entitles him to no relief.

We affirm McGuire's conviction and 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

 4