UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6559
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARNELL FREEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-02-427)
Submitted: October 20, 2004 Decided: November 22, 2004
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Darnell Freeman, Appellant Pro Se. LeDora Knight, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darnell Freeman entered into an agreement with the
Government to plead guilty to conspiracy to distribute fifty grams
or more of cocaine base. In the agreement, the Government reserved
the sole discretion to decide whether to file a motion for a
substantial assistance departure. Following his direct appeal,
Freeman filed a motion to enforce his plea agreement, seeking an
order requiring the Government to file a Fed. R. Crim. P. 35(b)
motion to reduce his sentence based on his cooperation. The
district court denied the motion, and Freeman timely appealed.
“[A] claim that a defendant merely provided substantial
assistance will not entitle a defendant to a remedy or even to
discovery or an evidentiary hearing. Nor would additional but
generalized allegations of improper motive.” Wade v. United
States, 504 U.S. 181, 186 (1992). A defendant must make a
“substantial threshold showing” of improper motive to warrant an
evidentiary hearing. Id. “This court has followed the Supreme
Court’s lead and strictly interpreted the Wade exceptions, holding
that the decision not to make a downward departure motion is
properly within the government’s discretion.” United States v.
Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus, unless the
Government’s refusal to file a motion is based on an
unconstitutional motive such as race or religious animus, or is not
rationally related to a legitimate governmental end, district
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courts are without authority to review a prosecutor’s discretionary
decision not to file a substantial assistance motion. Id.
Thus, Freeman’s assertions that he provided substantial
assistance do not entitle him to any relief. Further, his claim
that the Government breached the plea agreement by declining to
investigate Freeman’s information is belied by the plea agreement.
The plea agreement gave sole discretion to the Government to
determine whether to file a motion for departure and did not
require any specific investigation on the Government’s part.
Finally, Freeman does not even allege that the Government’s failure
to so move was based on an unconstitutional motive.
Accordingly, we affirm the order of the district court
and deny Freeman’s motion for appointment of counsel. 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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