UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4093
JACOB WALKER HUGHES, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-00-236)
Submitted: October 17, 2001
Decided: October 30, 2001
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael A. Grace, GRACE, HOLTON, TISDALE & CLIFTON,
P.A., Winston-Salem, North Carolina, for Appellant. Benjamin H.
White, Jr., United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for Appel-
lee.
2 UNITED STATES v. HUGHES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jacob Walker Hughes, III, pled guilty to one count of bank robbery
by use of a dangerous weapon, in violation of 18 U.S.C.A.
§§ 2113(d), 2 (West 2000); and one count of using and carrying a
firearm during a crime of violence, in violation of 18 U.S.C.A.
§§ 924(c)(1)(A)(ii), 2 (West 2000). He appeals his sentence.
Hughes’ attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), alleging that the district court erred
in failing to award Hughes a downward departure from the term of
imprisonment calculated under the Sentencing Guidelines1 based
upon Hughes’ assistance to the Government. Hughes has not filed a
pro se supplemental brief, despite being advised of his right to do so.2
This court has held that a departure on the grounds of substantial
assistance to the government first requires that the government file a
motion for the court to depart. See United States v. Schaefer, 120 F.3d
505, 508 (4th Cir. 1997). The Supreme Court held in Wade v. United
States, 504 U.S. 181 (1992), that district courts may review a prosecu-
1
U.S. Sentencing Guidelines Manual (2000).
2
After counsel filed notice of appeal, Hughes filed in the district court
a document styled "A motion for Rule 35 5K1 Substantial Assistance."
In this document, Hughes alleged counsel was ineffective for failing to
mention or file a motion for a downward departure based on the assis-
tance he provided authorities by giving information on the involvement
of his co-defendants in other bank robberies. Claims of ineffective assis-
tance of counsel are generally not cognizable on direct appeal, but should
be raised in a motion to vacate under 28 U.S.C.A. § 2255 (West Supp.
2001). Because the record does not conclusively show that counsel was
ineffective, we decline to review this claim. See United States v. King,
119 F.3d 290, 295 (4th Cir. 1997); United States v. Hoyle, 33 F.3d 415,
418 (4th Cir. 1994).
UNITED STATES v. HUGHES 3
tor’s refusal to file a substantial assistance motion to determine
whether the refusal is based on an unconstitutional motive. Id. at 185-
86. In order to invoke this review, however, a defendant must do
more than make "generalized allegations of improper motive"—he
must make a "substantial threshold showing." Id. at 186. A request for
downward departure was not presented to the district court by either
party in this case, and our review of the record discloses no evidence
that the failure of the Government to raise the issue of substantial
assistance was based on an improper motive.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. Therefore,
we affirm Hughes’ conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED