UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 03-4016
JESSE HOFFMAN, III, a/k/a Arab,
               Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Western District of Virginia, at Charlottesville.
           James H. Michael, Jr., Senior District Judge.
                           (CR-01-15)

                      Submitted: January 9, 2004

                      Decided: January 23, 2004

     Before WILKINSON and DUNCAN, Circuit Judges, and
              HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Brian Gay, GAY, CIPRIANO & ARRINGTON, P.C., Virginia
Beach, Virginia, for Appellant. John L. Brownlee, United States
Attorney, Nancy S. Healey, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee.
2                     UNITED STATES v. HOFFMAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Jesse Hoffman, III, pled guilty to conspiracy to distribute cocaine
base, in violation of 21 U.S.C. § 846 (2000), and using or carrying a
firearm during and in relation to a drug trafficking crime, in violation
of 18 U.S.C. § 924(c) (2000). The district court sentenced Hoffman
to a total imprisonment term of 384 months and a five-year term of
supervised release. Hoffman contends on appeal that the district court
erred in failing to compel the Government to move for a substantial
assistance departure, pursuant to U.S. Sentencing Guidelines Manual
§ 5K1.1, p.s. (2002). Finding no reversible error, we affirm.

   A sentencing court may determine whether the government has
"bargained away its § 5K1.1 discretion," and if so, determine whether
the defendant has rendered substantial assistance under the plea
agreement. United States v. Snow, 

, 190 (4th Cir. 2000).
This court held in Snow, however, that any waiver of the govern-
ment’s discretion must be explicit, not implied, in the language of the
agreement. 

does not promise a substantial
assistance motion in return for the defendant’s substantial assistance,
the defendant may compel the government to move for a substantial
assistance departure only if he makes a substantial threshold showing
that the government’s decision was based on an unconstitutional
motive or was unrelated to a legitimate government end. Wade v.
United States, 

, 185-86 (1992). Because Hoffman did not
object at sentencing to the Government’s failure to move for a sub-
stantial assistance departure, Hoffman’s claim is reviewed for plain
error. See United States v. Olano, 

, 732 (1993) (provid-
ing standard for plain error review).

   Because the Government specifically stated in the plea agreement
that the determination regarding whether Hoffman provided substan-
tial assistance was within its sole discretion, we conclude that the
                      UNITED STATES v. HOFFMAN                        3
Government did not explicitly waive its discretion to determine sub-
stantial assistance and therefore, did not breach the plea agreement by
failing to move for a substantial assistance departure. Further, there
was no evidence (and Hoffman does not argue) that the Government’s
decision not to move for a substantial assistance departure was based
on an unconstitutional motive or was unrelated to a legitimate govern-
ment end. Therefore, the district court did not err in failing to compel
the Government to move for a substantial assistance departure.

   Accordingly, we affirm Hoffman’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

                                                           AFFIRMED