UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4637



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


J. LEE STURGIS, a/k/a Jay Lee Sturgis,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00043-3)


Submitted:   March 7, 2007                    Decided:   May 10, 2007


Before NIEMEYER, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Thomas Cullen, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            J. Lee Sturgis appeals his conviction following his

guilty plea to conspiracy to possess with intent to distribute a

quantity of cocaine and cocaine base, in violation of 21 U.S.C.

§ 846 (2000).       Sturgis argues that the district court erred in

denying his motion to withdraw his guilty plea and in determining

that the Government did not breach the plea agreement and denying

his motion to vacate the plea agreement.                 Finding no error, we

affirm.

            Sturgis entered into a written plea agreement with the

Government that included a clause that the Government may move to

reduce his mandatory life sentence if Sturgis cooperated and

rendered substantial assistance to the Government.                    The plea

agreement     stated     that   it   was   within      the   Government’s   sole

discretion     to      determine     whether    Sturgis’s      assistance     was

substantial.      The plea agreement further provided that if Sturgis

gave false testimony, the United States would be relieved of its

obligations under the plea agreement.

            In January 2005, Sturgis was debriefed and admitted to

multiple roles in a drug distribution network, including receiving

and distributing cocaine, crack cocaine, and marijuana.                 Sturgis

testified    at   the    sentencing    hearing    of    Roderick   Williams    in

December 2005, and stated under oath that he was only a drug

addict, and was not a drug dealer.            Based on this testimony, which


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was inconsistent with his statements to the investigating case

agent, the Government decided that it would not move for a sentence

reduction based on substantial assistance.*        Sturgis then moved to

withdraw his guilty plea and to vacate the plea agreement based on

the Government’s alleged breach.          The district court denied the

motions,    finding   that   Sturgis’s   guilty   plea   was   knowing    and

voluntary and that the Government did not abuse its discretion in

failing to make the motion for a sentence reduction.

            Sturgis contends that the district court erred in denying

his motion to withdraw his guilty plea.           This court reviews the

district court’s denial of a motion to withdraw a guilty plea for

an abuse of discretion.      United States v. Ubakanma, 

,

424 (4th Cir. 2000).     Withdrawal of a guilty plea is not a matter

of right.    

v. Moore, 

, 248

(4th Cir. 1991)).      The defendant bears the burden of showing a

“fair and just reason” for the withdrawal of his guilty plea.            Fed.

R. Crim. P. 11(d)(2)(B).      “[A] ‘fair and just’ reason . . . is one

that essentially challenges. . . the fairness of the Rule 11

proceeding.”    United States v. Lambey, 

, 1394 (4th


     *
      The Government also had reservations whether Sturgis’s
declarations that he knew a major player in drug trafficking, Alvis
Mosely, and that he did not have knowledge of or participate in the
murder of Bobby Houston were truthful. However, the Government’s
decision not to move for a sentence reduction was based on
Sturgis’s false testimony at the Williams sentencing hearing
regarding his own role in drug trafficking, and there is no
evidence that Sturgis’s statements concerning Mosely or Houston
were factors in the decision.

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Cir.    1992)   (en    banc).         An    appropriately   conducted      Rule    11

proceeding, however, raises a strong presumption that the guilty

plea is final and binding.             

factors in

determining whether to permit the withdrawal of a guilty plea:

       (1) whether the defendant has offered credible evidence
       that his plea was not knowing or otherwise involuntary;
       (2) whether the defendant has credibly asserted his legal
       innocence; (3) whether there has been a delay between
       entry of the plea and filing of the motion; (4) whether
       the defendant has had close assistance of counsel;
       (5) whether withdrawal will cause prejudice to the
       government; and (6) whether withdrawal will inconvenience
       the court and waste judicial resources.

(citing 

(footnote

omitted)).

            Sturgis argues that the six-factor test should not apply

to his case because his guilty plea was made based upon unfulfilled

promises by the Government in violation of the due process clause.

Sturgis also argues that the breach by the Government made his plea

involuntary.         We do not agree.              Sturgis does not put forth

sufficient evidence to show that his plea was not voluntary and

knowing.   Therefore it was not an abuse of discretion for the court

to find the plea was voluntary without consideration of the alleged

breach.

            Sturgis also challenges the district court’s denial of

his    motion   to    vacate    the    plea    agreement    for   breach    by    the

Government. A plea agreement is breached when a government promise

that induces the plea goes unfulfilled.                Santobello v. New York,

                                           - 4 -


, 262 (1971); United States v. Ringling, 

,

506 (4th Cir. 1993).      The interpretation of a plea agreement is

“guided by contract law, and parties to the agreement should

receive the benefit of their bargain.”            United States v. McQueen,

, 66 (4th Cir. 1997).         “It is well—established that the

interpretation of plea agreements is rooted in contract law, and

that ‘each party should receive the benefit of its bargain.’”

United States v. Peglera, 

, 413 (4th Cir. 1994) (quoting

).          A criminal defendant asserting that

the Government breached a plea agreement bears the burden of

proving such a breach by a preponderance of the evidence.              United

States v. Snow, 

, 189 (4th Cir. 2000).

            First, under the plea agreement, the Government had the

sole discretion whether to move for a reduction in sentence due to

substantial assistance. The plea agreement placed no obligation on

the Government in this regard, and no reasonable reading of the

agreement can support such a construction.             See United States v.

Wallace, 

, 87 (4th Cir. 1994) (noting plea agreement did

not include obligation to file departure motion, but reserved

discretion to file with Government).            In fact, the plea agreement

states that “if the defendant gives false testimony, the United

States   will   be   relieved   of    its     obligations”   under   the   plea

agreement.      Furthermore, Sturgis failed to make “a substantial

threshold    showing”   that    the    Government’s    refusal   to   file    a


                                      - 5 -
substantial assistance motion was based on an unconstitutional

motive.   Wade v. United States, 

, 186 (1992).      We

conclude that the Government did not breach the plea agreement in

this case by failing to move for a substantial assistance reduction

under U.S. Sentencing Guidelines Manual § 5K1.1 (2004) or for a

downward sentencing variance, and therefore it was not error for

the district court to deny Sturgis’s motion.

          We therefore affirm Sturgis’s conviction.    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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