UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 98-4382
MICHAEL GILBERT, a/k/a Roy Smith,
a/k/a Tracy,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-97-352)

Submitted: March 2, 1999

Decided: April 2, 1999

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Beth M. Farber, Chief Federal Public Defender, James Wyda, Federal
Public Defender, Baltimore, Maryland, for Appellant. Helen F. Fahey,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael Gilbert appeals from his conviction following his guilty
plea to conspiracy to possess with intent to distribute cocaine base
and heroin. See 21 U.S.C.A. § 846 (West Supp. 1998). On appeal,
Gilbert asserts that the plea agreement entered by him was a contract
of adhesion containing unconscionable terms such that it should not
be enforced. He also contends that the district court should have
inquired why the government failed to file a motion under U.S. Sen-
tencing Guidelines Manual § 5K1.1 (1997), based on Gilbert's sub-
stantial assistance. Finding no error, we affirm.

Pursuant to a plea agreement, Gilbert pled guilty to the conspiracy
charge. As part of the agreement, Gilbert agreed to waive his right to
appeal the sentence imposed, forfeit his interest in any asset that had
been derived from the sale of controlled substances or used to facili-
tate the offense, waive his right to challenge the forfeiture of his
assets, cooperate fully and truthfully with the government--including
testifying at grand juries and trials, be available for debriefing, pro-
vide all documents or records in his possession which relate to an area
of investigation, submit to a polygraph and stipulate as to the admissi-
bility of the polygraph evidence, and stipulate to his deportability,
request an expedited hearing before an immigration judge, and not to
contest or seek any relief from deportation. Gilbert also acknowl-
edged that he was satisfied with the services of his attorney. Gilbert
signed this agreement as his voluntary consent to its terms.

During the hearing pursuant to Federal Rule of Criminal Procedure
11, the district court inquired whether Gilbert had fully discussed the
case with counsel and was satisfied with counsel's representation and
whether he was aware of and understood all the terms of the plea
agreement, including his waiver of appeal rights, agreement to forfeit
assets, and agreement to deportation. Gilbert affirmatively acknowl-

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edged his understanding of these terms. Gilbert also asserted that the
plea agreement contained the entire agreement between the parties, he
understood the trial rights he relinquished by pleading guilty, and no
threats or promises--other than those in the agreement--induced his
plea. Gilbert then entered his plea of guilty and stated that the plea
was freely and voluntarily given because he was, in fact, guilty of the
offense. The district court subsequently sentenced Gilbert to 360
months imprisonment. Gilbert then noted his appeal.

Gilbert first contends that the plea agreement is unenforceable
because it is unconscionable. Gilbert made no attempt in the district
court to withdraw his plea. Rather, he raises this issue for the first
time in this court. See Singleton v. Wulff, 

, 120 (1976)
(appellate court generally will not consider issues raised for first time
on appeal); Muth v. United States, 

, 250 (4th Cir. 1993).
Because Gilbert raises this issue for the first time on appeal, our
review is limited to plain error. See United States v. McQueen, 

, 65-66 (4th Cir. 1997) (affirming sentence despite govern-
ment's admitted breach of plea agreement); United States v. Fant, 

, 565 (4th Cir. 1992).

We find no plain error by the district court in accepting Gilbert's
plea pursuant to the plea agreement. See United States v. Olano, 

, 732 (1993). Our review of the agreement reveals no uncon-
scionable terms. Further, during the Rule 11 hearing, Gilbert assured
the district court that his decision to enter the plea agreement was vol-
untarily made. Additionally, Gilbert was free to reject the plea agree-
ment and either plead guilty without an agreement or plead not guilty
and proceed to trial. Finding no plain error, we affirm Gilbert's con-
viction.

Gilbert next argues that the case should be remanded for a hearing
in which the district court should determine why the government did
not file a motion under USSG § 5K1.1, based on Gilbert's substantial
assistance. We find no merit to this argument. The language of the
plea agreement provides that the government may seek a departure
from the applicable sentencing guidelines pursuant to USSG § 5K or
Federal Rule of Criminal Procedure 35(b), "if, in its sole discretion,
the United States determines that such a departure is appropriate."
Plea Agreement, ¶ 11 (emphasis added). Contrary to the implication

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of Gilbert's argument, the plea agreement did not require that the gov-
ernment file a motion pursuant to USSG § 5K1.1; rather, it could file
a motion under Fed. R. Crim. P. 35(b), or, it could determine that Gil-
bert did not provide substantial assistance warranting such motion.

In conclusion, we affirm Gilbert's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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