UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4381


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

QUAVIS J. RUDISELL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:09-cr-01021-JFA-3)


Submitted:   August 24, 2011                 Decided:   September 2, 2011


Before NIEMEYER and     GREGORY,    Circuit     Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, William K. Witherspoon, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Quavis J. Rudisell appeals his 120-month sentence for

conspiracy     to    possess    with   the    intent    to   distribute       five

kilograms or more of cocaine and fifty grams or more of crack

cocaine, in violation of 21 U.S.C. § 846 (2006).                        Finding no

error, we affirm.

          On        appeal,    Rudisell      contends    that      he     provided

substantial assistance, which obligated the Government to move

for a downward departure under the terms of his plea agreement.

He argues that the district court therefore erred in denying his

motion   to    compel    the    Government      to   move    for    a     downward

departure.

          The decision to move for a downward departure based on

substantial    assistance      is   generally    left   to   the   Government’s

discretion.     United States v. Butler, 

, 686 (4th

Cir. 2001); United States v. Dixon, 

, 230 (4th Cir.

1993).   Courts may inquire into the Government’s failure to file

such a motion where (1) the Government has obligated its in the

plea agreement to move for a departure; or (2) the Government’s

refusal to move for a departure was based on an unconstitutional

motive, such as race or religion.               See Wade v. United States,

, 185-86 (1992); United States v. Wallace, 

, 87 (4th Cir. 1994).



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            Although     Rudisell       argues     that   he      has    provided

substantial assistance and thus the Government is now obligated

under the terms of the plea agreement to move for a downward

departure, a careful reading of the plea agreement reveals that

the Government has made no such obligation.                  Rather, the plea

agreement    clearly    states,    in   relevant    part,    if   Rudisell       “is

deemed by the Government as providing substantial assistance in

the    investigation    or     prosecution    of   another     person    who     has

committed an offense, the Government agrees to move the court

for a downward departure or reduction of sentence.” (emphasis

added).     The Government has not deemed Rudisell’s cooperation to

be substantial assistance, and thus we find that it has not

obligated itself under the terms of the plea agreement to move

for a downward departure or reduction in sentence.

            We   therefore     uphold   the   district    court’s       denial    of

Rudisell’s motion to compel and affirm the criminal judgment.

We    dispense   with   oral    argument     because   the   facts      and   legal

contentions are adequately expressed in the materials before the

court and argument would not aid the decisional process.


                                                                         AFFIRMED




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