UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5023

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LINWOOD EARL JONES, JR., a/k/a Earl Linwood

Jones,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr.,

District Judge. (CR-04-499)

Submitted: August 31, 2006 Decided: September 21, 2006

Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed in part; dismissed in part by unpublished per curiam

opinion.

Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON,

L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills

Wagoner, United States Attorney, Lisa B. Boggs, Assistant United

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Linwood Earl Jones, Jr., pled guilty to possession of

marijuana with intent to distribute in violation of 21 U.S.C.A.

§ 841(a), (b)(1)(D) (West 1999 & Supp. 2006) (Counts One and Four);

possession of a firearm in furtherance of a drug trafficking crime,

18 U.S.C.A. § 924(c) (West 2000 & Supp. 2006) (Count Two); and

possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (2000)

(Count Six). Jones received a sentence of fifty-four months for

Count One, Count Four, and Count Six, and a consecutive ten-year

sentence for Count Two. Jones appeals his sentence, arguing that

the district court erred in denying him a three-level adjustment

for acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2005), and in refusing either to compel the government to

move for a downward departure for substantial assistance, USSG

§ 5K1.1, p.s., or to depart downward under USSG § 5K2.0, p.s. We

affirm in part and dismiss in part.

Jones was initially indicted under the name Earl Lynwood

Jones, an error which his attorney pointed out at his arraignment

in January 2005. On March 28, 2005, a superseding indictment was

filed which charged Jones with the same offenses, but used his

correct name. On March 30, 2005, Jones signed a plea agreement,

and on March 31, 2005, the day scheduled for trial, he entered a

plea of guilty. The probation officer recommended a two-level

adjustment for acceptance of responsibility, see USSG § 3E1.1(a),
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but the government declined to move for the additional one-level

reduction under § 3E1.1(b) because Jones’ guilty plea was not

timely. At sentencing, Jones objected to the government’s failure

to move for the additional reduction. The district court overruled

his objection. 

A defendant who has earned a two-level adjustment for

acceptance of responsibility may receive an additional one-level

reduction only if the government moves for the additional

reduction. USSG § 3E1.1(b). Application Note 6 to § 3E1.1

explains that the government’s motion is required because the

government “is in the best position to determine whether the

defendant has assisted authorities in a manner that avoids

preparing for trial . . . .” Note 6 also specifies that “the

conduct qualifying for a decrease . . . under subsection (b) will

occur particularly early in the case.”

Because Jones entered his guilty plea on the day

scheduled for trial, after the government had been forced to

prepare fully for trial, and the government consequently declined

to move for a reduction under subsection (b), the district court

did not err in denying Jones the additional one-level adjustment

for acceptance of responsibility. 

At sentencing, Jones also challenged the government’s

failure to move for a downward departure, asserting that he had

provided substantial assistance to state authorities and had so
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informed the government. The government explained that Jones had

provided no assistance to federal authorities. She stated that she

had contacted the state officer identified by defense counsel and

learned that Jones provided assistance to him. However, after

cooperating, Jones engaged in new criminal conduct which formed the

basis for the charges in Counts Four and Six. She stated that,

under these circumstances, she would not request a § 5K1.1

departure. The district court determined that Jones had not

provided substantial assistance to the federal prosecutor, that the

government was under no obligation to reward him for assistance to

state authorities, and that the government’s motives for not

requesting a departure were not unconstitutional. The court

refused to compel a § 5K1.1 motion and also found no reason to

depart downward under § 5K2.0.

This court reviews for clear error the district court’s

decision not to compel the government to file a § 5K1.1 motion.

United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000); United

States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). Jones’ plea

agreement did not obligate the government to move for a § 5K1.1

departure even if he provided substantial assistance. There was no

evidence that the government refused to make the motion based on

any unconstitutional motive. See Wade v. United States, 504 U.S.

181, 185-86 (1992). Therefore, the district court did not clearly

err in refusing to compel the government to file a § 5K1.1 motion.
Courts that have considered this issue since United States v. *

Booker, 543 U.S. 220 (2005), was decided have uniformly concluded

that Booker does not change the rule. See, e.g., United States v.

Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting cases from

five circuits). 

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A district court’s decision not to depart is not

reviewable on appeal as long as the court recognized its authority

to depart. United States v. Quinn, 359 F.3d 666, 682 (4th Cir.

2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir. 1990)). Here, the district court expressed no uncertainty *

about its authority to depart under USSG § 5K2.0. The court

concluded, however, that under the facts of Jones’ case, a

departure was not warranted. We conclude that this claim is not

reviewable on appeal. See Quinn, 359 F.3d at 682.

We therefore affirm the sentence imposed by the district

court, but dismiss that portion of the appeal which contests the

district court’s decision not to depart. 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 IN PART;

DISMISSED IN PART