UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5383

OTIS JEFFREY HASTY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge.
(CR-93-225-V)

Submitted: March 11, 1997

Decided: March 24, 1997

Before HAMILTON and LUTTIG, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

B. Grant Smithson, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Robert J. Conrad, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Otis Jeffrey Hasty was convicted pursuant to his guilty pleas of one
count each of carjacking (18 U.S.C. § 2119 (1994)), using or carrying
a firearm during and in relation to a crime of violence (18 U.S.C.
§ 924(c)(1) (1994)), and possession of a firearm by a convicted felon
(18 U.S.C. § 922(g)(1) (1994)). On appeal, he argues that USSG
§ 5K1.1* is unconstitutional and that he received ineffective assis-
tance of counsel. Finding no error, we affirm.

The basic facts of the case are undisputed. Hasty pointed a gun at
the head of a woman using an ATM machine and demanded that she
give him money. When she had difficulty using the machine, he
demanded that she give him her car. The victim complied, and Hasty
drove away. Hasty was apprehended the next day while driving the
victim's car.

Although Hasty provided authorities with some information, the
Government declined to make a motion for downward departure, and
Hasty filed a motion for the district court to declare USSG § 5K1.1
unconstitutional. Hasty concedes that "a defendant has no right to dis-
covery or an evidentiary hearing [on the Government's decision not
to make a motion for downward departure] unless he makes a `sub-
stantial threshold showing'" that the decision was based on unconsti-
tutional grounds. Wade v. United States, 504 U.S. 181, 186 (1992);
see also United States v. Wallace, 22 F.3d 84, 87-88 (4th Cir. 1994).
Hasty's sole argument is that this standard violates his due process
rights because it is almost impossible to make such a showing.

We reject Hasty's argument. The threshold requirement here is no
different from any other threshold requirement; it promotes the effi-
cient administration of justice, and it is not unconstitutional. More-
over, since Hasty never alleged that the decision not to file a motion
for downward departure was based on improper motives, we find that
he has no basis to complain that the current standard is too high.
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).

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Finally, unless counsel's errors are apparent on the face of the
record, claims of ineffective assistance of counsel are not cognizable
on direct appeal. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). Such claims are more appropriately raised in a motion
filed pursuant to 28 U.S.C. § 2255 (1994), amended by Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214. Id. Finding no such errors in the record before us, we find
that Hasty's claim is not cognizable on direct appeal.

We therefore affirm the findings and sentence of the district court.
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

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