UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4305

PAULETTE SIMPSON PARKER,

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-00-21)

Submitted: September 25, 2001

Decided: October 12, 2001

Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Joseph A. Sanzone, SANZONE & BAKER, Lynchburg, Virginia, for

Appellant. Ruth E. Plagenhoef, United States Attorney, Ray B. Fitzgerald, Jr., 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Unpublished opinions are not binding precedent in this circuit.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: 

Paulette Parker entered a guilty plea to conspiracy to distribute

more than five grams of cocaine base (crack), 21 U.S.C. § 846 (1994),

and was sentenced to the statutorily required minimum term of sixty

months imprisonment. Parker appeals her sentence, arguing that the

district court erred in refusing to consider the substantial assistance

motion filed in her husband’s case as equally applicable in her case.

We affirm. 

Parker and her husband, Jermaine, distributed crack to informants

on multiple occasions. After they were arrested, Jermaine cooperated.

At his sentencing, the government requested a downward departure

for substantial assistance pursuant to U.S. Sentencing Guidelines

Manual § 5K1.1, p.s. (2000) (authorizing a sentence below the guideline range), and 18 U.S.C.A. § 3553(e) (West 2000) (authorizing a

departure below the mandatory minimum sentence). The government

did not move for a departure in Parker’s case because she provided

no useful information and, although she was free on bond prior to

sentencing, she did not attempt to cooperate or assist the government

during that time. Parker argued that the § 5K1.1 motion filed in her

husband’s case should be considered in her case as well because (1)

her case was so closely connected to her husband’s case that a sort

of marital privilege should apply, (2) she lacked the valuable information he possessed, and (3) she had encouraged him to cooperate.* The

district court determined that Parker had no marital right to benefit

from the § 5K1.1 motion filed in Jermaine’s case and that it had no

authority to inquire into the government’s decision not to file a

motion in her case because there was no evidence that the government’s decision was based on an unconstitutional motive. 

We find no error in the district court’s decision. The appeals court

lacks authority to review the district court’s decision not to depart

downward unless the court’s decision is based on a mistaken belief

that it lacks authority to depart. United States v. Edwards, 188 F.3d

*Parker’s testimony at sentencing did not establish that her husband’s

cooperation was due solely to her influence. 

2 UNITED STATES v. PARKER
230, 238-39 (4th Cir. 1999), cert. denied, 528 U.S. 1130 (2000). Parker does not contend that the district court failed to understand its

authority to depart on the ground she urged, but that the district court

ought to have the authority to depart based on her husband’s cooperation and the § 5K1.1 motion filed in his case. We cannot so hold.

When the government has not obligated itself to move for a substantial assistance departure, the district court may review the prosecutor’s refusal to move for a departure only if the defendant makes a

substantial threshold showing that the government’s decision was

based on an unconstitutional motive. Wade v. United States, 504 U.S.

181, 185-86 (1992); see also United States v. LeRose, 219 F.3d 335,

342 (4th Cir. 2000). Parker did not assert in the district court that the

government had any unconstitutional motive for deciding not to move

for a departure in her case, and she does not make that argument on

appeal. The record contains no evidence that would support such a

finding. Consequently, Parker has not shown that the district court

erred in finding that she was not entitled to benefit from the motion

filed in her husband’s case. 

We therefore affirm the 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. PARKER 3