UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4286
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOHNNIE LEE LUCAS, III,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-cr-00230-FL-1)
Submitted: November 30, 2012 Decided: January 10, 2013
Before WYNN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New
Bern, North Carolina, for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Yvonne V. Watford-
McKinney, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Lee Lucas pled guilty to one count of
possession of twenty-eight or more grams of cocaine base (crack)
with intent to distribute in violation of 21 U.S.C. § 841(a)
(2006). The district court varied below the Guidelines range of
188-235 months and imposed a sentence of 175 months’
imprisonment. Lucas appeals his sentence, contending that it
was error for the government to refuse to file a motion for a
downward departure based on his substantial assistance, U.S.
Sentencing Guidelines Manual § 5K1.1, p.s. (2011), and that the
district court’s downward variance was insufficient to meet the
sentencing goals of 18 U.S.C. § 3553(a) (2006). We affirm.
With respect to the first issue, Lucas concedes that,
under Wade v. United States, 504 U.S. 181, 185-86 (1992), the
district court may review a prosecutor’s decision not to file a
§ 5K1.1 motion and grant relief only if the prosecutor’s
decision was based on an unconstitutional motive. Lucas also
concedes that no showing of an unconstitutional motive was made
at sentencing. Therefore, this claim fails.
Next, at his sentencing hearing, Lucas requested a
sentence of 150 months based on his cooperation with state and
federal authorities prior to his arrest. The government
requested a sentence at the bottom of the Guidelines range,
explaining that Lucas had cooperated, but had continued his
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unlawful conduct while cooperating, although he was instructed
that he could not violate the law while cooperating. We review
a sentence for reasonableness, applying an abuse of discretion
standard, Gall v. United States, 552 U.S. 38, 51 (2007), which
requires consideration of both procedural and substantive
reasonableness. Id. In reviewing a variance, we must give due
deference to the sentencing court’s decision. United States v.
Diosdado-Star, 630 F.3d 359, 366 (4th Cir.), (citing Gall, 552
U.S. at 51), cert. denied, 131 S. Ct. 2946 (2011).
Lucas argues that the district court may consider a
defendant’s cooperation as a basis for a reduced sentence even
if the government has not filed a § 5K1.1 motion, citing United
States v. Knox, 573 F.3d 441 (7th Cir. 2009), and United States
v. Fernandez, 443 F.3d 19 (2d Cir. 2006). However, it is clear
from the record that, in this case, the district court in fact
considered Lucas’ cooperation in determining his sentence, and
sentenced him below the Guidelines range based on his motion for
a downward variance for substantial assistance. The court
stated that Lucas’ failure to comply with the rule that he not
break the law while cooperating with authorities would affect
its sentencing determination. We conclude that the district
court did not abuse its discretion in varying to a sentence of
175 months, and that the sentence is not unreasonable.
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We therefore 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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