UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4004

LAFAYETTE FITZGERALD BRADFORD,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-36)

Submitted: May 26, 1998

Decided: September 2, 1998

Before NIEMEYER, HAMILTON, and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gypsie LaVue Murdaugh, MURDAUGH LAW OFFICES, Lake City,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
William E. Day, II, Assistant United States Attorney, Florence, South
Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lafayette F. Bradford appeals the sentence he received after plead-
ing guilty to possessing with intent to distribute cocaine base, in vio-
lation of 21 U.S.C. § 841(a)(1) (1994). We affirm.

Pursuant to his plea agreement, Bradford agreed to assist the gov-
ernment in its drug investigations. The agreement further provided
that if Bradford cooperated pursuant to the plea agreement and that
cooperation was "deemed by Attorneys for the Government as provid-
ing substantial assistance," the Government would move the court to
depart from Bradford's guideline range pursuant to U.S.S.G.*
§ 5K1.1 and 18 U.S.C.A. § 3553(e) (West 1985 & Supp. 1998),
and/or Fed. R. Crim. P. 35(b).

At sentencing, the Government stated that it would not move for
a downward departure and Bradford moved the court to compel the
Government to make a motion for a downward departure. After hear-
ing evidence on the issue, the court denied Bradford's motion.

On appeal, Bradford claims that the district court erred in denying
his motion to compel the Government to make a downward departure
motion. When a plea agreement promises unequivocally that the gov-
ernment will move for a substantial assistance departure in return for
the defendant's substantial assistance, and the government subse-
quently decides not to file a § 5K1.1 motion, the defendant may claim
that the agreement has been breached and move for specific perfor-
mance. See United States v. Conner, 930 F.2d 1073, 1076 (4th Cir.
1991).
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*U.S. Sentencing Guidelines Manual (1995).

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Bradford's plea agreement did not contain an unconditional prom-
ise to make a downward departure motion; rather, the Government
agreed to deem whether Bradford's cooperation had been "substantial
assistance" and, if so, to make a downward departure motion. See
United States v. Dixon, 998 F.2d 228, 230-31 (4th Cir. 1993). Where
the Government retains its discretion regarding whether it will make
a substantial assistance motion, there is "no enforceable promise"
because the plea agreement "explicitly reserv[ed] discretion rather
than promising anything." See United States v. Wallace, 22 F.3d 84,
87 (4th Cir. 1994). But see United States v. Knights, 968 F.2d 1483,
1487-88 (2d Cir. 1992) (remanding for a hearing despite Govern-
ment's "sole and unfettered discretion" regarding motion). In this
case, only when the Government deemed Bradford's cooperation as
substantial assistance did the mandatory language regarding the
motion for a downward departure become binding on the Govern-
ment.

Because the Government had the discretion to choose whether to
make the motion, the district court could only review the Govern-
ment's failure to make the motion if the decision was based on an
unconstitutional motive or was not rationally related to a legitimate
governmental objective. See Wade v. United States, 504 U.S. 181,
185-86 (1992); Wallace, 22 F.3d at 87. To necessitate the court's
review, Bradford was required to make a "`substantial threshold
showing'" that transcended a mere recitation of the assistance he pro-
vided. Wade, 504 U.S. at 186.

At his sentencing hearing, Bradford acknowledged that the plea
agreement gave the Government discretion to move for a downward
departure, but argued that the Government abused that discretion by
not moving for a downward departure. Thus, at sentencing and on
appeal, Bradford emphasizes the evidence of Bradford's cooperation
with the Government. However, "although a showing of assistance is
a necessary condition for relief, it is not a sufficient one." Wade, 504
U.S. at 187.

Bradford claims that the Government's refusal to move for a down-
ward departure was based on an improper motive because the Gov-
ernment did not want Bradford to get all of the value Bradford could
out of his substantial assistance. In the same vein, Bradford alleges

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that the Government's refusal was the result of its belief that Bradford
would eventually get too much time reduced. The Wade Court held
that a defendant would be entitled to relief if the prosecution refused
to file a motion for a suspect reason such as the Defendant's race or
religion. See 504 U.S. at 186. However, neither a claim that the defen-
dant merely provided substantial assistance nor additional but gener-
alized allegations of improper motive would entitle him to a remedy
or even to discovery or an evidentiary hearing. Id.

We find that Bradford failed to make a "substantial threshold show-
ing" of improper motive because the record reveals that the Govern-
ment could have sought to increase Bradford's sentence after it
determined that Bradford did not fulfill his obligations under the plea
agreement, but failed to do so. See United States v. David, 58 F.3d
113, 114-15 (4th Cir. 1995) (because defendant breached plea agree-
ment by jumping bail and failing to appear government's obligation
to move for downward departure ended).

Bradford next claims that the district court erred by denying his
motion to compel the Government to move for a downward departure
because the Government's only reason for failing to make the motion
was that Bradford allegedly failed a polygraph test and that allegation
was based on hearsay testimony. The plea agreement provided that
Bradford would submit to such polygraph examinations as might be
requested by the Government. Bradford further agreed that "his fail-
ure to pass any such polygraph examinations to the Government's sat-
isfaction" would result "at the Government's sole election" in the
obligations of the Government within the agreement becoming null
and void.

At sentencing, the Government presented evidence of the poly-
graph results indicating deception by Bradford without the presence
or testimony of the agent who conducted the test. Bradford did not
object to the admission of the evidence on the ground that the results
amounted to hearsay and did not request a continuance in order to
allow the polygrapher to be present. Instead, Bradford claimed that he
had not lied during the polygraph examination and attempted to
explain the results. Because the plea agreement explicitly stipulated
that Bradford's failure to pass such a polygraph examination "to the
Government's satisfaction" would result "at the Government's sole

                    4
election" in its obligations becoming null and void and the Govern-
ment presented evidence that Bradford had not passed the polygraph
examination to its satisfaction, Bradford did not make a "substantial
threshold showing" of an improper motive. See Wade, 504 U.S. at
186. It is irrelevant that the Government's evidence may have been
hearsay evidence because Bradford was given the opportunity to rebut
the evidence by testifying. See United States v. Falesbork, 5 F.3d 715,
722 (4th Cir. 1993).

Lastly, Bradford claims that the district court erred by denying his
motion to compel the Government to move for a downward departure
because it concluded that it could give Bradford credit for his substan-
tial assistance at a later time and such a position is precluded by law.
This claim clearly lacks merit. The sentencing transcript reveals that
the district court denied Bradford's motion because it found "no bad
faith or abuse of discretion by the prosecution in its handling of
[Bradford's] cooperation." The court further found "no basis on which
to interfere with the prosecution's decision not to make the motion"
for a downward departure. The court did not state that a possible Rule
35(b) motion in the future was a factor that it considered in making
its ruling to deny Bradford's motion. In responding to other issues
raised by Bradford at sentencing, the district judge noted that just
because she denied the motion to compel the Government to make a
downward departure motion did not mean that she did not think that
Bradford cooperated to a certain extent. The district judge further
stated that if a Rule 35(b) motion was filed in the future, she would
give that cooperation favorable consideration. Because the district
court did not base its decision to deny the motion to compel on the
reasoning Bradford suggests, we will not consider the merits of his
claim.

Under the plea agreement, the Government had the discretion to
determine whether the cooperation qualified as substantial assistance.
The Government declined to make a downward departure motion
because it determined that Bradford's assistance did not aid in the res-
olution of any criminal investigation. Thus, the Government was not
obligated under the plea agreement to make a downward departure
motion. Furthermore, Bradford fails to make a showing that the Gov-
ernment's decision not to make the motion was based on an unconsti-

                    5
tutional motive or was not rationally related to a legitimate
governmental objective. See Wade, 504 U.S. at 185-86.

Accordingly, we affirm Bradford's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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