UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4382

MICHAEL GILBERT, a/k/a Roy Smith,

a/k/a Tracy,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert E. Payne, District Judge.

(CR-97-352)

Submitted: March 2, 1999

Decided: April 2, 1999

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Beth M. Farber, Chief Federal Public Defender, James Wyda, Federal

Public Defender, Baltimore, Maryland, for Appellant. Helen F. Fahey,

United States Attorney, Stephen W. Miller, Assistant United States

Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Gilbert appeals from his conviction following his guilty

plea to conspiracy to possess with intent to distribute cocaine base

and heroin. See 21 U.S.C.A. § 846 (West Supp. 1998). On appeal,

Gilbert asserts that the plea agreement entered by him was a contract

of adhesion containing unconscionable terms such that it should not

be enforced. He also contends that the district court should have

inquired why the government failed to file a motion under U.S. Sentencing Guidelines Manual § 5K1.1 (1997), based on Gilbert's substantial assistance. Finding no error, we affirm.

Pursuant to a plea agreement, Gilbert pled guilty to the conspiracy

charge. As part of the agreement, Gilbert agreed to waive his right to

appeal the sentence imposed, forfeit his interest in any asset that had

been derived from the sale of controlled substances or used to facilitate the offense, waive his right to challenge the forfeiture of his

assets, cooperate fully and truthfully with the government--including

testifying at grand juries and trials, be available for debriefing, provide all documents or records in his possession which relate to an area

of investigation, submit to a polygraph and stipulate as to the admissibility of the polygraph evidence, and stipulate to his deportability,

request an expedited hearing before an immigration judge, and not to

contest or seek any relief from deportation. Gilbert also acknowledged that he was satisfied with the services of his attorney. Gilbert

signed this agreement as his voluntary consent to its terms.

During the hearing pursuant to Federal Rule of Criminal Procedure

11, the district court inquired whether Gilbert had fully discussed the

case with counsel and was satisfied with counsel's representation and

whether he was aware of and understood all the terms of the plea

agreement, including his waiver of appeal rights, agreement to forfeit

assets, and agreement to deportation. Gilbert affirmatively acknowl-

 2
edged his understanding of these terms. Gilbert also asserted that the

plea agreement contained the entire agreement between the parties, he

understood the trial rights he relinquished by pleading guilty, and no

threats or promises--other than those in the agreement--induced his

plea. Gilbert then entered his plea of guilty and stated that the plea

was freely and voluntarily given because he was, in fact, guilty of the

offense. The district court subsequently sentenced Gilbert to 360

months imprisonment. Gilbert then noted his appeal.

Gilbert first contends that the plea agreement is unenforceable

because it is unconscionable. Gilbert made no attempt in the district

court to withdraw his plea. Rather, he raises this issue for the first

time in this court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976)

(appellate court generally will not consider issues raised for first time

on appeal); Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).

Because Gilbert raises this issue for the first time on appeal, our

review is limited to plain error. See United States v. McQueen, 108

F.3d 64, 65-66 (4th Cir. 1997) (affirming sentence despite government's admitted breach of plea agreement); United States v. Fant, 974

F.2d 559, 565 (4th Cir. 1992).

We find no plain error by the district court in accepting Gilbert's

plea pursuant to the plea agreement. See United States v. Olano, 507

U.S. 725, 732 (1993). Our review of the agreement reveals no unconscionable terms. Further, during the Rule 11 hearing, Gilbert assured

the district court that his decision to enter the plea agreement was voluntarily made. Additionally, Gilbert was free to reject the plea agreement and either plead guilty without an agreement or plead not guilty

and proceed to trial. Finding no plain error, we affirm Gilbert's conviction.

Gilbert next argues that the case should be remanded for a hearing

in which the district court should determine why the government did

not file a motion under USSG § 5K1.1, based on Gilbert's substantial

assistance. We find no merit to this argument. The language of the

plea agreement provides that the government may seek a departure

from the applicable sentencing guidelines pursuant to USSG § 5K or

Federal Rule of Criminal Procedure 35(b), "if, in its sole discretion,

the United States determines that such a departure is appropriate."

Plea Agreement, ¶ 11 (emphasis added). Contrary to the implication

 3
of Gilbert's argument, the plea agreement did not require that the government file a motion pursuant to USSG § 5K1.1; rather, it could file

a motion under Fed. R. Crim. P. 35(b), or, it could determine that Gilbert did not provide substantial assistance warranting such motion.

In conclusion, we affirm Gilbert'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