United States v. Wicks , 110 F. App'x 306 ( 2004 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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