                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4924


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS ALAN JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg.     Gina M. Groh,
District Judge. (3:11-cr-00035-GMG-DJJ-1)


Submitted:   April 8, 2013                 Decided:   April 18, 2013


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kevin D. Mills, Shawn R. McDermott, MILLS & ASSOCIATES, PLLC,
Martinsburg,  West  Virginia,  for  Appellant.    William  J.
Ihlenfeld, II, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Thomas Alan Jones pled guilty to possession of 126.3

pounds (57.4 kilograms) of marijuana with intent to distribute,

21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2012), and

was sentenced to a term of eighteen months’ imprisonment.               Jones

appeals his sentence, contending that the district court erred

by not holding an evidentiary hearing to determine whether the

government acted in good faith when it refused to move for a

substantial       assistance     departure      under    U.S.       Sentencing

Guidelines Manual § 5K1.1, p.s. (2012).              The government argues

that Jones’ appeal should be dismissed pursuant to the waiver

provision in his plea agreement.          As explained below, the waiver

does not bar Jones’ appeal; however, we affirm the sentence.

             In   his   plea   agreement,    Jones   waived   the    right   to

appeal his sentence if it was within the statutory maximum, and

“the manner in which that sentence was determined on any ground

whatever.”        Jones also waived the right to ask the district

court for any departure.        The plea agreement gave the government

the right to seek a departure under USSG § 5K1.1 in its sole

discretion, without making any promise that it would file such a

motion or incurring any obligation to do so.            At the guilty plea

hearing, Jones, a forty-four-year-old college graduate, assured

the court that he understood these provisions.



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               A criminal defendant may, in a valid plea agreement,

waive the right to appeal under 18 U.S.C. § 3742 (2006).                                      United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).                                           This

court reviews the validity of an appellate waiver de novo and

will enforce the waiver if it is knowing and intelligent and the

issue    appealed       is    within    the    scope      of       that        waiver.        United

States    v.    Cohen,       459   F.3d    490,     494    (4th          Cir.    2006);       United

States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).                                    Jones does

not   contend        that    his   waiver     is    invalid.              Given    Jones’       age,

college    background,         and   the    record        of       the    plea    colloquy,      we

conclude that his acceptance of the waiver provision was knowing

and intelligent.

               However, Jones’ claim on appeal is that the government

acted in bad faith in refusing to file a § 5K1.1 motion, thereby

breaching an implied term of the plea agreement, and that he has

made the requisite threshold showing which justifies a hearing

on the matter in the district court.                       A valid waiver of appeal

rights does not bar consideration of a claim that the government

breached       the     plea    agreement.            Cohen,              459    F.3d     at     495.

Therefore,      the    waiver      does    not     prevent          us    from    reaching      the

merits of Jones’ appeal.

               As the party alleging a breach of the plea agreement,

Jones    has    the     burden     of     showing    by        a    preponderance         of    the

evidence that a breach occurred.                     United States v. Snow, 284

                                              3
F.3d 187, 189 (4th Cir. 2000).                   When a plea agreement does not

obligate     the   government         to     make      a     § 5K1.1     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.                Id. at 190 (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)       (prosecutor’s

discretion     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.       The    defendant         must      show    that     the       government’s

decision not to move for a departure was not rationally related

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

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

            In the district court, Jones did not claim that the

government acted in bad faith, but requested a hearing in order

to obtain further information about the government’s decision-

making   process,     which     defense       counsel         believed       would    produce

evidence of bad faith.           On appeal, Jones maintains that he can

make the required showing; however, he presents only speculation

that the prosecutor was not able or willing to assess properly

                                             4
the effect of Jones’ cooperation on the prosecution of other

defendants.     In his view, the government decided not to move for

a   departure     without    having     enough   information         to   properly

evaluate the effect of his cooperation on other prosecutions.

We conclude that Jones has not met his burden.

           We therefore affirm the district court’s judgment.                  We

dispense   with       oral   argument    because      the    facts    and   legal

contentions     are   adequately   presented     in    the   materials      before

this court and argument would not aid the decisional process.



                                                                          AFFIRMED




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