                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 99-4916
DAMON LAMARR RAGIN,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-98-294-MU)

                      Submitted: October 10, 2000

                      Decided: October 20, 2000

        Before MICHAEL and KING, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Edward T. Hinson, Jr., Fred B. Monroe, JAMES, MCELROY &
DIEHL, P.A., Charlotte, North Carolina, for Appellant. Mark T. Cal-
loway, United States Attorney, Brian Lee Whisler, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
2                       UNITED STATES v. RAGIN

Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   Damon Lamar Ragin pled guilty pursuant to a plea agreement to
one count of conspiracy to possess with intent to distribute cocaine
and cocaine base in violation of 21 U.S.C.A. §§ 841(a)(1) and 846
(West 1999), and one count of using and carrying a firearm during
and in relation to a drug trafficking offense in violation of 18
U.S.C.A. § 924(c) (West 2000). On appeal, Ragin claims that he was
entitled to a downward departure under USSG § 5K1.11 based upon
his substantial assistance to the Government. The district court cor-
rectly noted that it was without authority to depart under § 5K1.1
absent a motion from the Government seeking such departure. See
United States v. Schaefer, 120 F.3d 505, 508 (4th Cir. 1997).

   Ragin also contends that the district court erred by failing to recog-
nize its authority to depart downward in the absence of a Government
motion when the Government’s refusal to make the motion was the
result of an unconstitutional motive. We disagree. At the sentencing
hearing, the prosecutor stated that the Government would not move
for a substantial assistance departure because Ragin had continued to
engage in drug trafficking offenses while on pretrial release for the
purpose of assisting law enforcement. In his sentencing testimony,
Ragin admitted these violations of the conditions of his release.

   In order to properly raise this issue, Ragin was required to make
a "substantial threshold showing," in the district court, of an improper
Government motive. See Wade v. United States, 504 U.S. 181, 186
(1992). He failed to meet this burden at sentencing, and on appeal
only speculates that the refusal "could" have been based on an uncon-
stitutional factor. As this issue was not properly raised below, the dis-
trict court did not err in failing to further inquire into the
    1
     U.S. Sentencing Guidelines Manual (1998).
                       UNITED STATES v. RAGIN                         3

Government’s reasons for refusing to move for a substantial assis-
tance departure.

  We therefore affirm Ragin’s convictions and sentence.2 We dis-
pense 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
  2
   We have considered the effect of Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), and find that, because Ragin received a sentence of impris-
onment and term of supervised release that did not exceed the statutory
maximums set out in 21 U.S.C.A. § 841(b)(1)(C) (West 1999), no plain
error occurred. See United States v. Aguayo-Delgado, 220 F.3d 926, 933-
34 (8th Cir. 2000).
