UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4720
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY LEE FELDER, a/k/a Cool Daddy,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-03-283)
Submitted: July 19, 2006 Decided: September 11, 2006
Before TRAXLER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Ray Coit Yarborough, Jr., Florence, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Johnny Lee Felder pled guilty to one count of armed
robbery and one count of felon in possession of a firearm, in
violation of 18 U.S.C. §§ 2, 922(g)(1), 924(e), 1951(a) (2000),
pursuant to a written plea agreement. Felder was sentenced to a
total term of imprisonment of 480 months. Felder has appealed,
raising several issues related to his sentence. We affirm.
Felder first contends the district court erred in denying
his motion for specific performance of the plea agreement, by which
he sought to compel the Government to request a downward departure
pursuant to U.S. Sentencing Guidelines Manual § 5K1.1 (2002). The
decision to file a § 5K1.1 motion is solely within the Government’s
discretion. United States v. Butler, 272 F.3d 683, 686 (4th Cir.
2001). Therefore, unless the Government has obligated itself in a
plea agreement to file a substantial assistance motion, its refusal
to do so is not reviewable unless based on an unconstitutional
motive. Wade v. United States, 504 U.S. 181, 185-86 (1992).
The plea agreement provided that the Government would
file a § 5K1.1 motion if Felder “cooperate[d] pursuant to the
provisions of [the] Plea Agreement, and that cooperation [was]
deemed by Attorneys for the Government as providing substantial
assistance . . . .” Under the agreement, Felder was required “to
be fully truthful and forthright” with the Government regarding his
knowledge of, among other crimes, armed robberies and homicides.
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To test his truthfulness, Felder agreed to not only submit to
polygraph examinations but also to pass them “to the Government’s
satisfaction.” If he failed to pass a polygraph examination, the
Government reserved the right to declare its obligations under the
plea agreement “null and void.” Felder failed a polygraph
examination regarding information provided about a case of
interest, and the Government refused to file a § 5K1.1 motion.
Felder argues the polygraph provision was unconscionable
as a matter of law and therefore evidences the Government’s
unconstitutional motive for refusing to file a § 5K1.1 motion. The
Government, however, asserts it did not file a § 5K1.1 motion
because Felder failed to substantially assist in its investigation
of the only case of interest, namely a grocery store armed robbery
and murder. Because the Government retained its discretion to file
a § 5K1.1 motion, and Felder has failed to establish that the
Government’s refusal to file was based on an unconstitutional
motive, we conclude the district court did not err in denying
Felder’s motion for specific performance of the plea agreement.
Next, Felder contends the district court erred in denying
his motion to require a higher burden of proof at sentencing.
Felder asserts he should have been sentenced only on those facts
admitted to or proven beyond a reasonable doubt. However, after
United States v. Booker, 543 U.S. 220 (2005), sentencing courts are
still required to calculate and consider the guideline range
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prescribed thereby as well as the factors set forth in 18 U.S.C.
§ 3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005). Further, we have previously noted that sentencing
factors should continue to be evaluated based on the preponderance
of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th
Cir. 2005). As Felder’s sentence was imposed post-Booker, the
district court’s use of a preponderance of the evidence standard
was proper.
Felder also contends the district court’s application of
the murder cross-reference was improper in light of the
inconsistent testimony presented during the sentencing hearing.
When reviewing the district court’s application of the Sentencing
Guidelines, we review findings of fact for clear error and
questions of law de novo. United States v. Green, 436 F.3d 449,
456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). After
reviewing the materials on appeal, including the district court’s
lengthy summation of the evidence and analysis, we find no error in
the district court’s application of the murder cross-reference.
Finally, Felder contends the district court erred by
failing to rule on disputed matters in the revised presentence
report as required by Fed. R. Crim. P. 32(i)(3)(B). However, in
denying Felder’s motion to strike the revised presentence report,
the court repeatedly stated that it would base its decision on the
testimony and evidence presented during the sentencing hearing
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rather than on the summaries presented in the presentence report.
Further, the court made clear that any information included in the
report, but not presented during the sentencing hearing, would be
given “very limited weight.” Therefore, we conclude the district
court complied with Rule 32.
Accordingly, we affirm Felder’s sentence. 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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