                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4770


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RAISHAWN MAURICE SMITH, a/k/a Ray Shawn Smith, a/k/a Rai
Shawn Smith, a/k/a RaiShawn Smith,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11-
cr-00694-RWT-1)


Submitted:   May 30, 2013                     Decided:   June 4, 2013


Before SHEDD, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Kristi N. O’Malley, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Raishawn Maurice Smith pled guilty pursuant to a plea

agreement     to   one    count       each   of        possession    with       intent    to

distribute    controlled       substances,             in   violation     of    21   U.S.C.

§ 841(a)(1) (2006); possession of a firearm in furtherance of

drug trafficking offenses, in violation of 18 U.S.C.A. § 924(c)

(West Supp. 2012); and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was

sentenced to ninety-seven months in prison.                         Smith appeals the

district court’s judgment, asserting only that the Government

acted in bad faith by failing to vouch for him at sentencing and

by   not   providing     him     an    opportunity          to   provide       substantial

assistance before his sentencing.                  We find no error and affirm

the district court’s judgment.

            Because      Smith    did    not      raise      this   argument         in   the

district    court,    our   review      is       for    plain    error.        See   United

States v. Olano, 507 U.S. 725, 732–37 (1993).                              To establish

plain error, Smith must show that:                      (1) an error occurred; (2)

the error was plain; and (3) the error affected his substantial

rights.     Id. at 732.        Even if Smith makes this showing, we will

exercise our discretion to notice the error only if the error

“seriously     affect[s]         the     fairness,           integrity         or    public

reputation of judicial proceedings.”                        Id. (internal quotation

marks omitted).

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               When a plea agreement does not obligate the government

to    make     a    motion       if        the    defendant         provides          substantial

assistance, the government’s decision not to make a motion may

be reviewed only for bad faith or unconstitutional motive.                                      See

United    States     v.     Snow,      234       F.3d      187,    190    (4th      Cir.     2000).

(citing United States v. Huang, 178 F.3d 184, 188-89 (3d Cir.

1999)); see also Wade v. United States, 504 U.S. 181, 185-86

(1992)    (holding        that    prosecutor’s              discretion         is     subject      to

constitutional limits).                A good faith decision is one that is

“based on an honest evaluation of the assistance provided and

not on considerations extraneous to that assistance.”                                        Huang,

178   F.3d     at    189.        A     showing         that       the    defendant         provided

substantial        assistance         is    necessary,        but       not    sufficient,         to

entitle the defendant to relief.                           Wade, 504 U.S. at 186-87.

Rather, the defendant must show that the government’s decision

not to make a substantial assistance motion was not rationally

related to a legitimate government end, to include “the cost and

benefit that would flow from moving.”                        Id. at 187.

               Here, the Government did not obligate itself in the

plea agreement to make a substantial assistance motion.                                     Rather,

the     plea    agreement        provided,            in   pertinent          part,    that     the

Government would make such a motion if Smith cooperated and the

Government deemed his cooperation to be substantial assistance.

Thus,    the    Government’s          discretionary           decision        not     to    make    a

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substantial assistance motion is not reviewable if there is no

evidence       that    the    decision       was      based     on     an    unconstitutional

motive or bad faith.

               Although Smith asks this court for a remand and an

evidentiary hearing so he can be assured that the reasons for

denying him a substantial assistance motion were not based on

bad    faith      or     unconstitutional              motive,         he        presents        only

speculation       that       the     Government        did       not    provide          him    with

sufficient opportunity to cooperate.                        The Supreme Court imposes

upon    a   defendant        the     burden      to    do      more    than      merely        allege

unconstitutional            motive     or     bad     faith       in    order       to     require

judicial inquiry, however.                  Wade, 504 U.S. at 186.                   Notably, a

defendant must make “a substantial threshold showing[,]” failing

which he is “not entitle[d] [] to a remedy or even to discovery

or an evidentiary hearing.”                  Id.      Because Smith’s speculation of

bad    faith    on    the    part     of    the      Government        is    insufficient          to

trigger     further      judicial          inquiry,       we    find        no   error     in    the

district court’s failure to conduct an evidentiary hearing into

the    Government’s          refusal        to     make     a    substantial         assistance

motion.

               We therefore affirm the district court’s judgment.                                 We

dispense       with    oral        argument        because       the        facts    and        legal




                                                 4
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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