UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARVIN DARRELL GUEST, a/k/a Rail,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Sol Blatt, Jr., Senior District
Judge. (2:03-cr-00126-SB)
Submitted: June 26, 2008 Decided: July 14, 2008
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Joseph Condon, Jr., CONDON LAW FIRM, North Charleston, South
Carolina, for Appellant. Kevin F. McDonald, Acting United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Darrell Guest pled guilty in 2003 to conspiracy to
commit bank fraud and was sentenced to a term of sixty months
imprisonment and three years of supervised release. He appeals
this sentence,1 contending that he was improperly denied a
departure for substantial assistance, U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2002), and a hearing on the issue. We
affirm.
Guest’s plea agreement provided that the government would
move for a departure if his cooperation was deemed substantial by
the government. At his sentencing hearing, Guest’s attorney
acknowledged that his client had been interviewed, but that the
results of his cooperation were as yet unknown, and for that reason
the government would not move for a departure. Both defense
counsel and the government held out hope for a later motion for
sentence reduction.2
1
The district court granted Guest a late appeal under United
States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993), after he filed a
motion to vacate pursuant to 28 U.S.C.A. § 2255 (2000). The court
held Guest’s other claims in abeyance pending this appeal.
Although Guest has completed his prison term, we retain
jurisdiction because he remains on supervised release.
2
The government ultimately decided that Guest’s assistance was
not substantial, and did not move pursuant to Fed. R. Crim. P.
35(b) for a reduction based on substantial assistance. Guest
alleged in his § 2255 motion that the government’s decision not to
move for a sentence reduction was arbitrary or made in bad faith.
Because this issue is pending before the district court, we do not
address it.
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Unless the government is obligated under the terms of a
plea agreement, its decision as to whether the defendant has
provided substantial assistance is discretionary. United States v.
Snow, 234 F.3d 187, 190 (4th Cir. 2000). Guest’s plea agreement
leaves the discretion to determine whether he provided substantial
assistance warranting a § 5K1.1 departure with the government.
Guest did not object at sentencing to the government’s decision not
to make a § 5K1.1 motion, and the record does not disclose any
evidence that the government refused to make the motion based on
any unconstitutional motive. See Wade v. United States, 504 U.S.
181, 185-86 (1992) (holding that “federal district courts have
authority to review a prosecutor’s refusal to file a substantial
assistance motion and to grant a remedy if they find that the
refusal was based on an unconstitutional motive.”). Further, Guest
has not shown that the government’s decision at sentencing was “not
rationally related to any legitimate Government end.” Id. at 186
(internal citation omitted).
We therefore affirm the sentence imposed 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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