UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4609
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR ULISES LARA-TORRES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:09-cr-00232-TLW-1)
Submitted: April 17, 2014 Decided: April 21, 2014
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Chesser, Aiken, South Carolina, for Appellant. Alfred
William Walker Bethea, Jr., Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Ulises Lara-Torres pled guilty, pursuant to a
written plea agreement, to conspiracy to possess with intent to
distribute and to distribute five kilograms or more of cocaine
and fifty grams or more of crack cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A) (2012) and 21 U.S.C. § 846 (2012).
The district court sentenced Lara-Torres to 144 months’
imprisonment, which was within his advisory Guidelines range.
Counsel for Lara-Torres has filed this appeal pursuant
to Anders v. California, 386 U.S. 738 (1967), certifying that
there are no meritorious grounds for appeal but questioning
whether the district court should have held an evidentiary
hearing related to the Government’s failure to move for a
downward departure based on Lara-Torres’ efforts at cooperation.
Lara-Torres likewise raises this issue in his pro se
supplemental brief. The Government has not filed a response
brief. For the reasons that follow, we reject this argument and
affirm the criminal judgment.
Because Lara-Torres did not raise this issue in the
district court, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 732–37 (1993). To establish
plain error, Lara-Torres must show that: (1) an error occurred;
(2) the error was plain; and (3) the error affected his
substantial rights. Id. at 732. Even if Lara-Torres makes this
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showing, we will exercise our discretion to notice the error
only if the error “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks and alteration omitted).
Lara-Torres maintains that the language in his plea
agreement was “unequivocal in obligating the Government to move
for a downward departure where substantial assistance is
rendered.” (Appellant’s Br. at 5). But the relevant
contractual language clearly reserved the threshold
determination — that is, whether the defendant’s assistance so
qualified as “substantial” — to the Government’s discretion.
Under these circumstances, the Government’s decision not to make
a substantial assistance motion may be “reviewed only for bad
faith or unconstitutional motive.” United States v. Snow, 234
F.3d 187, 190 (4th Cir. 2000); see Wade v. United States, 504
U.S. 181, 185–86 (1992) (holding that prosecutor’s discretion is
subject to constitutional limits).
Lara-Torres does not contend that the Government acted
in bad faith or with an unconstitutional motive. Instead, he
posits, the district court should have held an evidentiary
hearing to more fully inquire as to the issue, given counsel’s
recitation of the assistance Lara-Torres provided.
We disagree. As the Supreme Court has explained, “a
claim that a defendant merely provided substantial assistance
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will not entitle a defendant to a remedy or even to discovery or
an evidentiary hearing.” Wade, 504 U.S. at 186. The defendant
must also do more than merely allege unconstitutional motive or
bad faith to require the district court to conduct such a
hearing. Id. Given that Lara-Torres does not even suggest that
the Government acted in bad faith or with an unconstitutional
motive, we readily conclude that the duty for further judicial
inquiry was not triggered and thus that there was no error, let
alone plain error, in the district court’s failure to conduct an
evidentiary hearing in this case.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform Lara-Torres, in writing,
of his right to petition the Supreme Court of the United States
for further review. If Lara-Torres requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Lara-Torres. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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