UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5184

JAMES A. TOWNSEND,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-94-441-MJP, CR-94-914-MJP, CR-94-859-MJP)

Submitted: December 19, 1995

Decided: January 12, 1996

Before LUTTIG and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Creighton B. Coleman, MCCUTCHEN, BLANTON, RHODES &
JOHNSON, L.L.P., Winnsboro, South Carolina, for Appellant.
J. Preston Strom, Jr., United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant James A. Townsend appeals his sentence for the trans-
portation of fraudulently acquired property under 18 U.S.C. § 2
(1988), 18 U.S.C.A. §§ 1341, 2314 (West Supp. 1995). The plea
agreement unambiguously provided that if the Government deemed
Townsend's assistance to be substantial, the Government would move
for a downward departure. Although Townsend provided some assis-
tance, the Government did not deem the assistance to be substantial,
and consequently declined to file a USSG § 5K1.1 (Nov. 1994)
motion. Townsend claims the Government breached its plea agree-
ment with Townsend by failing to move for a downward departure in
his sentence based on substantial assistance under§ 5K1.1. Townsend
claims the Government's decision was not rationally related to a legit-
imate governmental objective. Finding no error, we affirm.

A party alleging the breach of a plea agreement bears the burden
of proving that breach. United States v. Dixon , 998 F.2d 228, 230 (4th
Cir. 1993). While a district court generally cannot review the Govern-
ment's refusal to move for a § 5K1.1 departure, review is necessitated
if the defendant makes a "substantial threshold showing" that the
Government's decision was not rationally related to a legitimate gov-
ernmental objective. Wade v. United States, 504 U.S. 181, 185-86
(1992); see United States v. Conner, 930 F.2d 1073 (4th Cir.), cert.
denied, 502 U.S. 958 (1991). The threshold showing must transcend
a mere recitation of the assistance provided by the defendant. Wade,
504 U.S. at 186.

Townsend fails to make the substantial threshold showing. Rather,
he only offers a mere recitation of the extent of his assistance. As the
Supreme Court noted in Wade, "[a]lthough a showing of assistance is
a necessary condition for relief, it is not a sufficient one." Id. at 187.
Thus, we affirm the district court's order. We dispense with oral argu-

                     2
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    3
