UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4664

DARRIN LAVON WILLIAMS, a/k/a

Sewage,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Cameron McGowan Currie, District Judge.

(CR-96-374)

Submitted: June 30, 1998

Decided: July 16, 1998

Before ERVIN and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael G. Nettles, NETTLES, TURBEVILLE & REDDECK, Lake

City, South Carolina, for Appellant. J. Rene Josey, United States

Attorney, William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Darrin Lavon Williams pled guilty to conspiracy to possess marijuana, cocaine, and cocaine base (crack) with intent to distribute, 21

U.S.C. § 846 (1994), and received a sentence of 188 months imprisonment. He appeals his sentence, arguing that the district court erred

in refusing to compel the government to move for a substantial assistance departure under USSG § 5K1.1, p.s.,* and in calculating his

criminal history. We affirm.

Under the terms of Williams' plea agreement, the government

promised to move for a substantial assistance departure if Williams

should cooperate "and that cooperation is deemed by Attorneys for

the Government as providing substantial assistance in the investigation or prosecution of another person who has committed an offense."

Williams attempted to cooperate. He was interviewed several times

and tried to make controlled purchases of drugs but was unsuccessful.

Despite his efforts, the government did not move for a departure. The

case agent testified at the sentencing hearing that the information Williams provided had not proved useful in the investigation or prosecution of anyone else. The district court found no evidence that the

government had acted in bad faith in exercising its discretion not to

move for a departure.

On appeal, Williams argues that he provided substantial assistance

which the government failed to use, and that, as a result, the government's decision not to move for a departure was not rationally related

to a legitimate government purpose. See Wade v. United States, 504

U.S. 181, 186-87 (1992) (prosecutor's discretion under USSG

§ 5K1.1 subject to constitutional limitations). However, a defendant

seeking relief on this basis must make a showing of unconstitutional

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*U.S. Sentencing Guidelines Manual (1995).

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motive on the part of the government. See id. at 186. This Williams

failed to do. Consequently, the district court did not err in refusing to

compel the government to move for a departure.

Williams' second claim is that the district court should have computed his criminal history score based on the time he served in custody for a number of prior offenses, rather than on the sentence

imposed. He concedes that the sentencing guidelines provide that

criminal history points are calculated based on the sentence imposed,

not time served. See USSG § 4A1.2(b), comment. (n.2). We find that

the district court properly calculated Williams' criminal history score.

The sentence is therefore affirmed. 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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