UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4399
MARK ALAN QUEEN,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                          (CR-98-7-MU)

                      Submitted: July 26, 2001

                      Decided: August 7, 2001

       Before LUTTIG and WILLIAMS, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Gretchen C. F.
Shappert, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
2                       UNITED STATES v. QUEEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Mark Alan Queen pled guilty to conspiracy to distribute and pos-
sess with intent to distribute cocaine and crack cocaine, in violation
of 21 U.S.C.A. § 841(a)(1) (West 1999). The district court sentenced
him to a 135-month prison term. On appeal, Queen challenges his
sentence on the ground that the Government engaged in prosecutorial
misconduct when it failed to move for a substantial assistance down-
ward departure under U.S. Sentencing Guidelines Manual § 5K1.1,
p.s. (1998). We affirm.

   Queen first contends that he provided substantial assistance, which
obligated the Government to move for a downward departure on that
ground. Queen’s plea agreement provided that whether to make a sub-
stantial assistance motion was within the Government’s sole discre-
tion, and Queen acknowledged that he understood that provision.
Where the Government retains its discretion regarding whether it will
make a substantial assistance motion, there is "no enforceable prom-
ise" because the plea agreement "explicitly reserv[ed] discretion
rather than promising anything." United States v. Wallace, 

,
87 (4th Cir. 1994). The Government, therefore, was not obligated to
file a § 5K1.1 motion.1
  In the absence of a Government motion for a substantial assistance
downward departure, a court may review the prosecutor’s decision
not to move for a departure only if the refusal is based on an unconsti-
    1
   Even assuming that the Government was obligated to move for a
downward departure for substantial assistance, the Government was
released from its obligation when Queen continued to distribute drugs
while on pretrial release. See United States v. David, 

, 115
(4th Cir. 1995) (finding that government’s obligation to file substantial
assistance motion ended when defendant breached terms of plea agree-
ment by jumping bail and failing to appear in court).
                        UNITED STATES v. QUEEN                         3
tutional motive, such as race or religion, or is not rationally related
to a permissible government objective. United States v. LeRose, 

, 341-42 (4th Cir. 2000) (citing Wade v. United States, 

, 185-86 (1992)). Queen argues that the Government’s reli-
ance on the results of a polygraph examination, which indicated that
he lied about distributing drugs while released on bond, amounted to
an unconstitutional motive because such results would have been
inadmissible at trial. Queen, however, cites no authority to support his
argument, and we have found none. We therefore find that the district
court did not clearly err in refusing to compel the Government to file
a substantial assistance motion. United States v. Conner, 

, 1076 (4th Cir. 1991) (stating standard of review).
   Finally, to the extent that Queen asserts for the first time on appeal
that the district court, in the absence of a § 5K1.1 motion, could have
departed under U.S. Sentencing Guidelines Manual § 5K2.0 (1998)
(containing the general provisions and policy statement for depar-
tures), we reject his claim.2 United States v. Alegria, 

,
189 (1st Cir. 1999) (holding that "a defendant’s assistance to the pros-
ecutor cannot serve as the basis for a section 5K2.0 departure" and
collecting cases adopting rule). Thus, the district court did not plainly
err in failing to depart under § 5K2.0.
   Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
                                                            AFFIRMED
  2
   As support for his argument, Queen relies on In re Sealed Case (Sen-
tencing Guidelines’ "Substantial Assistance"), 

, 1204
(D.C. Cir. 1998) (holding that "even where the government files no
motion, Koon [v. United States, 

(1996),] authorizes district
courts to depart from the Guidelines based on a defendant’s substantial
assistance where circumstances take the case out of the relevant guide-
line heartland"), rehearing en banc granted and vacated in part, 

(D.C. Cir. 1998) (order). On rehearing, the court held that if
the government does not file a motion under § 5K1.1, a district court
does not have the authority to depart for substantial assistance under
USSG § 5K2.0. In re Sealed Case No. 97-3112, 

, 136-42
(D.C. Cir.), cert. denied, 

(1999)