concurring in part and dissenting in part.
I concur in the affirmance of appellants’ drug convictions but respectfully dissent from the remand for an evidentiary hearing on the government’s decision not to move for a downward departure for Pipes.
Pipes entered into a plea agreement with the government that promised him certain benefits in exchange for his plea of guilty. The agreement provided that “any cooperation provided by you will be considered by the government under sentencing guidelines § 5K1.1 and 18 U.S.C. § 3553(e).” This promise obligated the government to consider the nature and value of any cooperation, but it did not require a motion for downward departure. See United States v. Kelly, 18 F.3d 612, 617 (8th Cir.1994). Although Pipes now claims that the agreement was orally modified by a statement of a prosecutor on or before January 11,1996, he testified at the change of plea hearing on January 18, 1996 that no promises had been made to him other than those included in the written agreement. The district court did not err in concluding that the government was not obligated to move for a downward departure. See United States v. Knight, 96 F.3d 307, 309 (8th Cir.1996).
In order to obtain an evidentiary hearing Pipes had the burden to make a substantial showing that the decision not to move for a downward departure was irrational or in bad faith. See Wade v. United States, 504 U.S. 181, 187, 112 S.Ct. 1840, 1844, 118 L.Ed.2d 524 (1992); Kelly, 18 F.3d at 617-18. Pipes offered his affidavit stating that a prosecutor and an FBI agent in Oklahoma had told him that information he gave would be helpful in a case against Akale Green. A responsive affidavit indicated that the Oklahoma prosecutor in charge of the Green investigation subsequently concluded that Pipes had not been fully truthful or forthcoming during the investigation. She recommended against a downward departure, and the Nebraska prosecutor relied upon that recommendation in refusing to move for a departure. Pipes did not meet his burden of showing bad faith or irrational action by the government so the district court did not err in denying the request for an evidentiary hearing. See Wade, 504 U.S. at 187, 112 S.Ct. at 1844; U.S. v. Johnigan, 90 F.3d 1332, 1339 (8th Cir.1996). For these reasons the district court did not err in denying Pipes’ motion for an evidentiary hearing.
Accordingly, I would affirm the judgment in all respects.