UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY XAVIER PADEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(CR-04-1066)
Submitted: August 23, 2006 Decided: November 9, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, A. Lance Crick, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Xavier Paden pled guilty, pursuant to a written
plea agreement, to conspiracy to possess with intent to distribute
and to distribute 500 grams or more of cocaine and fifty grams or
more of crack cocaine, in violation of 21 U.S.C. § 846 (2000), and
was sentenced to 240 months of imprisonment. Paden appeals,
asserting that the district court erred in finding that the
Government did not breach the plea agreement by failing to move for
a downward departure under U.S. Sentencing Guidelines Manual
(“USSG”) § 5K1.1, p.s. (2004), and to withdraw the notice provided
pursuant to 21 U.S.C. § 851 (2000). We affirm.
Paden claims on appeal that the Government refused to
honor its obligations under the plea agreement because the
Government believed that he breached the plea agreement by lying to
law enforcement officers during a murder investigation and by
failing a polygraph test. Even if a breach occurred, Paden asserts
that it was not material. This court reviews for clear error a
district court’s decision not to compel the Government to file a
§ 5K1.1 motion. United States v. Snow, 234 F.3d 187, 189 (4th Cir.
2000); United States v. Conner, 930 F.2d 1073, 1076 (4th Cir.
1991).
Paden’s plea agreement clearly stated that the decision
whether to move for a departure based on substantial assistance lay
within the sole discretion of the Government. The plea agreement
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also provided that, if Paden failed a polygraph examination, then
the Government’s obligation to move for a downward departure under
USSG § 5K1.1 would be null and void. Because Paden violated the
terms of his plea agreement by failing to pass a polygraph test to
the Government’s satisfaction, the district court concluded that
Paden breached the terms of the plea agreement. Accordingly, the
district court refused to compel the Government to file a § 5K1.1
motion. We find that the district court did not clearly err in
refusing to compel the Government to move for a downward departure
and affirm for the reasons stated by the district court.
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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