United States v. Moore , 53 F. App'x 692 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4277
EDWARD MOORE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-01-7-BO)
Submitted: November 27, 2002
Decided: January 3, 2003
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Terry F. Rose, Smithfield, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Christine Witcover Dean, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MOORE
OPINION
PER CURIAM:
Edward Moore, Jr., pled guilty to carjacking and aiding and abet-
ting carjacking, 18 U.S.C. §§ 2, 2119 (2000) (Count One), and bran-
dishing a firearm during and in relation to a crime of violence, 18
U.S.C. § 924(c) (2000) (Count Two). He was sentenced to 120
months imprisonment for the carjacking offense and a successive
term of eighty-four months imprisonment for the § 924(c) conviction.
Moore appeals his sentence, arguing that the government’s decision
not to make a sentence recommendation after it filed a motion for a
substantial assistance departure, U.S. Sentencing Guidelines Manual
§ 5K1.1, p.s. (2001), violated his substantive due process rights. We
affirm.
Moore’s plea agreement did not obligate the government to make
a substantial assistance motion if he provided substantial assistance;
it did not mention the possibility of a § 5K1.1 motion.* The district
court was initially inclined to depart upward pursuant to U.S. Sentenc-
ing Guidelines Manual § 4A1.3, p.s. (2001), but decided against an
upward departure after the government moved for a substantial assis-
tance departure. The government attorney explained that Moore
assisted the government by exonerating a person who had been mis-
takenly identified as the carjacker. However, because Moore had an
extensive criminal history and because the instant offense was a car-
jacking committed against a woman with five children in her car, the
government attorney requested only a sentence at the low end of the
guideline range. The district court decided to sentence Moore to the
minimum sentence under the guidelines, a term of 120 months impris-
onment, and the required consecutive eighty-four-month term of
imprisonment. The court did not depart upward.
*In the agreement, Moore waived his right to appeal his sentence
except for claims of ineffective assistance of counsel or prosecutorial
misconduct. The government has declined to assert the waiver because
Moore’s argument here may be construed as a claim of prosecutorial
misconduct.
UNITED STATES v. MOORE 3
When the defendant’s plea agreement does not obligate the govern-
ment to move for a substantial assistance departure in the event the
defendant provides substantial assistance, the district court may
review the government’s refusal to move for a departure, but may
only grant a remedy if the government’s refusal was based on an
unconstitutional motive, such as race or religion, or is not rationally
related to a legitimate government end. Wade v. United States, 504
U.S. 181, 185-86 (1992).
Moore acknowledges that the government did not breach the plea
agreement, but contends that, in refusing to recommend a sentence
below the guideline range because of his extensive criminal history,
the government essentially negated the substantial assistance motion
and argued against a departure based on an impermissible factor. We
take the latter argument to mean that, in his view, the government’s
conduct was not rationally related to a legitimate government end.
However, we are not persuaded that a defendant may contest the ade-
quacy of a § 5K1.1 motion based on Wade.
Because Moore was not entitled to a § 5K1.1 motion under the
terms of his plea agreement, he was not entitled to an "adequate"
§ 5K1.1 motion. Moreover, the prosecutor’s conduct was rationally
related to two legitimate government ends: (1) rewarding Moore for
his assistance and (2) ensuring a suitable punishment for the crime.
The government attorney explained the extent of Moore’s coopera-
tion, for which she felt he should be rewarded, but also expressed her
concern that a sentence below the guideline range would not ade-
quately punish the offense. By filing the § 5K1.1 motion, the govern-
ment opened the door for a downward departure if the district court,
in its discretion, determined that a departure was warranted. The gov-
ernment’s failure to recommend a sentence below the guideline range
did not prevent the district court from departing. In this case, although
the district court did not depart downward, the government’s filing of
the § 5K1.1 motion persuaded the court not to depart upward as it was
previously inclined to do. Consequently, Moore has not shown that
error occurred.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
4 UNITED STATES v. MOORE
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED