UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4846
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSCAR A. SMITH, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-04-300)
Submitted: June 9, 2006 Decided: July 3, 2006
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Van Lloyd, Savannah, Georgia, for Appellant. Jonathan S.
Gasser, United States Attorney, Carlton R. Bourne, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oscar A. Smith, Jr., pled guilty to conspiracy to possess
with intent to distribute 5 kilograms or more of cocaine and 50
grams or more of cocaine base, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), 846 (2000). He was sentenced to 240 months
in prison. Smith appeals his sentence.
Smith first argues that the district court erred in
assessing criminal history points for his state conviction for
possession with intent to distribute cocaine in September 1996,
which he contends was part of the same course of conduct or common
scheme or plan as his federal drug conspiracy offense. Smith
argues that without those criminal history points he would be
eligible for the safety valve provision of the U.S. Sentencing
Guidelines Manual (“USSG”) § 5C1.2. A sentence which is for
conduct that is part of the instant offense should not be counted
as a prior sentence in determining criminal history. USSG §
4A1.2(a)(1). Conduct is part of the instant offense if it is
relevant conduct under guideline section 1B1.3. See USSG §
4A1.2(a)(1), comment. (n.1). Under guideline section 1B1.3(a)(2),
relevant conduct includes acts that were part of the “same course
of conduct or common scheme or plan” as the offense of conviction
when the offenses are the type which would be grouped under §
3D1.2(d). However, as noted by Application Note 8 to USSG § 1B1.3,
when, as here, the defendant was previously convicted and sentenced
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for the sale of cocaine, then immediately upon release from prison
again sells cocaine using the same accomplice and modus operandi,
the offense conduct relevant to the state prison sentence is
considered as prior criminal history, not as part of the same
course of conduct or common scheme or plan as the offense of
conviction. We therefore find that because Smith was convicted and
sentenced in state court for distribution of cocaine and after
release from that sentence resumed distributing cocaine, the
district court did not err in concluding Smith’s prior state prison
sentence is counted in determining his criminal history category.
See USSG § 1B1.3, comment. (n.8).
Smith next argues on appeal that the district court erred
in denying his motion to compel the Government to make a motion for
a downward departure as agreed to in the plea agreement. The
Government’s decision not to move for a departure is reviewed only
for bad faith or unconstitutional motive. See Wade v. United
States, 504 U.S. 181, 185-86 (1992); United States v. Snow, 234
F.3d 187, 190 (4th Cir. 2000) (citation omitted). Here, the plea
agreement included a provision that, “[t]he failure of the
Defendant to be fully truthful and forthright at any stage will, at
the sole election of the [Government], cause the obligations of the
[Government] within the Agreement to become null and void.” Smith
further stipulated and agreed in the plea agreement that “his
failure to pass any [polygraph] examination to the Government’s
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satisfaction will result, at the Government’s sole discretion, in
the obligations of the [Government] within the Agreement becoming
null and void.”
Smith admitted that he was only 95 percent truthful with
the Government. In addition, he failed the Government’s polygraph
examination. Therefore, because Smith was not fully truthful in
the information he supplied to the Government, in violation of the
terms of his plea agreement, and he does not allege any
unconstitutional motive or bad faith on the part of the Government
in declining to move for a downward departure, we find the district
court did not err in denying Smith’s motion to compel the
Government to move for a downward departure.
Accordingly, we affirm the district court’s judgment. 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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