United States v. Wicks ( 2004 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-4943
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    VIRGIL WICKS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Graham C. Mullen, Chief
    District Judge. (CR-01-10)
    Submitted:   August 27, 2004             Decided:   September 23, 2004
    Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    M. Timothy Porterfield, Charlotte, North Carolina, for Appellant.
    Robert J. Conrad, Jr., United States Attorney, C. Nicks Williams,
    Assistant United States Attorney, Charlotte, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Virgil Wicks pleaded guilty to conspiracy to possess with
    intent to distribute methamphetamine, 
    21 U.S.C. § 846
     (2000).
    Wicks was sentenced to 121 months in prison.              He now appeals,
    claiming that, because he provided substantial assistance to the
    United States, the prosecutor should have moved for a downward
    departure pursuant to U.S. Sentencing Guidelines Manual § 5K1.1
    (2003).    We affirm.
    As part of his plea agreement, Wicks waived his right to
    challenge his conviction and sentence on direct appeal or in a
    collateral proceeding.         The waiver did not apply, however, to
    claims    of    ineffective   assistance   of   counsel   or   prosecutorial
    misconduct.
    To the extent that Wicks’ claim alleges prosecutorial
    misconduct and is therefore cognizable on appeal, the claim lacks
    merit. His plea agreement clearly stated that the decision whether
    to move for a departure based on substantial assistance lay within
    the sole discretion of the United States.         Thus, the United States
    had no obligation to make such a motion, even in the face of
    substantial assistance.       See United States v. Snow, 
    234 F.3d 187
    ,
    190 (4th Cir. 2000).      There is no indication that the United States
    refused to make a motion based on an unconstitutional motive.           See
    Wade v. United States, 
    504 U.S. 181
    , 185-86 (1992).            Finally, the
    United States informed the court at sentencing that it did not
    - 2 -
    intend to move for downward departure because, shortly after Wicks’
    release on bond, he violated the terms of that bond. Under this
    circumstance, there was no error in the United States’ decision not
    to make a USSG § 5K1.1 motion.   See United States v. David, 
    58 F.3d 113
    , 114-15 (4th Cir. 1995).
    We accordingly affirm.     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
    - 3 -
    

Document Info

Docket Number: 03-4943

Judges: Niemeyer, Motz, Shedd

Filed Date: 9/23/2004

Precedential Status: Non-Precedential

Modified Date: 3/2/2024