United States v. Woodward ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4097
RANDY EUGENE WOODWARD, a/k/a
Brandon Carrington,
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-95-30, CR-97-51)
Submitted: August 11, 1998
Decided: September 10, 1998
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Yvonne T. Griffin, TUCKER & GRIFFIN, Charlottesville, Virginia,
for Appellant. Robert P. Crouch, Jr., United States Attorney, Ruth E.
Plagenhoef, Assistant United States Attorney, Mara L. Leiding, Third
Year Law Student, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Randy Eugene Woodward appeals his 210-month sentence
imposed upon pleading guilty to distributing cocaine base in violation
of 21 U.S.C. § 841(a)(1) (1994), and failing to appear in violation of
18 U.S.C. § 3146(a)(1) (1994). Woodward's attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), con-
tending that the government breached the plea agreement by refusing
to move for a downward departure for substantial assistance under
U.S. SENTENCING GUIDELINESMANUAL § 5K1.1, p.s. (1995), but stating
that, in her view, there are no meritorious grounds for appeal. Wood-
ward was informed of his right to file a pro se supplemental brief but
has not done so. After a thorough review of the record, we affirm
Woodward's convictions and sentence.
Woodward was indicted for the drug offense and agreed to plead
guilty pursuant to a written plea agreement containing a provision that
the government, in its discretion, could (but was not required to)
move for a downward departure if Woodward provided substantial
assistance. Woodward met with authorities and participated in several
sting operations that resulted in convictions. Before Woodward
entered his plea, however, he jumped bail. When authorities arrested
Woodward a year later, he was indicted for failing to appear at his
plea hearing.
Woodward entered new guilty pleas to distribution of cocaine base
and failing to appear. Neither plea agreement contained a provision
regarding substantial assistance. At sentencing, Woodward contended
that the government breached its agreement to move for a downward
departure under USSG § 5K1.1, p.s. He testified that at several meet-
ings with federal agents regarding his assistance before he jumped
bail, he was promised a § 5K1.1 motion. Although government wit-
nesses conceded that Woodward had provided substantial assistance,
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they testified that they spoke to Woodward in general terms about
how his cooperation might benefit him.
On appeal, Woodward's counsel asserts that the district court erred
in finding that the government had not agreed to move for a down-
ward departure based on substantial assistance under USSG § 5K1.1,
p.s. Based on the testimony presented at the sentencing hearing and
the fact that there was no provision regarding substantial assistance
in the plea agreements accepted by the district court, the court's find-
ing that there was no agreement by the government to move for a
downward departure under USSG § 5K1.1, p.s., was not clearly erro-
neous. See United States v. Blake, 81 F.3d 498, 503 (4th Cir. 1996)
(stating standard of review).
In the absence of a government motion, a sentencing court cannot
grant a downward departure for substantial assistance unless the gov-
ernment has committed itself in a plea agreement to do so or defen-
dant establishes that the government's refusal to make such a motion
was based on an unconstitutional motive. See Wade v. United States,
504 U.S. 181, 185-86 (1992). Woodward made no suggestion of an
unconstitutional motive. Finally, assuming, arguendo, that the gov-
ernment was obligated to move for a downward departure for substan-
tial assistance, the government was released from its obligation when
Woodward jumped bail and failed to appear in court. See United
States v. David, 58 F.3d 113, 115 (4th Cir. 1995).
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
the convictions and sentence. This court requires that counsel inform
her client, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client. 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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