                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4859


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

LORETTA SIMOND HUSKINS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (2:06-cr-00035-LHT)


Submitted:    February 27, 2009             Decided:   March 20, 2009


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICES OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Loretta Simond Huskins pled guilty to conspiracy to

distribute       and        possess        with        intent       to         distribute

methamphetamine, 21 U.S.C. § 846 (2006), and possession of a

firearm in furtherance of a drug trafficking crime, 18 U.S.C.A.

§ 924(c) (West 2000 & Supp. 2008).                    Huskins received a term of

seventy-eight months imprisonment for the drug offense and a

consecutive five-year sentence for the § 924(c) conviction.                              She

appeals her sentence, contending that the government’s decision

not to move for a substantial assistance departure under U.S.

Sentencing      Guidelines        Manual        § 5K1.1        (2006)     amounted        to

prosecutorial misconduct.          We affirm.

           Huskins       claims     that    the       government        was    guilty    of

prosecutorial     misconduct        because          (1)   a    substitute       attorney

appeared   at   sentencing        instead       of   the   attorney      who    was     most

familiar with her cooperation and (2) her cooperation was deemed

not   substantial       because       it   did       not   result       in     high-value

prosecutions.

           With respect to the first claim, the government was

not   obligated        to   have      a    particular          attorney       appear      at

sentencing.      The attorney who appeared had been informed about

the extent of Huskins’ cooperation by the attorney with primary

responsibility for her case, and was able to advise the court

that Huskins had apparently done her best to cooperate, and the

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lack of substantial results was mainly because her information

was not sufficiently current to be useful.

            Huskins’ second claim is groundless because the plea

agreement gave the government full discretion to decide whether

Huskins’    assistance           was    substantial     and       warranted          a    § 5K1.1

motion.     The filing of a motion for sentence reduction based on

substantial assistance provided by a defendant is within the

government’s sole discretion.                  See Fed. R. Crim. P. 35(b); USSG

§ 5K1.1.      A court may remedy the government’s refusal to move

for a reduction of sentence if: (1) the government has obligated

itself to move for a reduction under the terms of the plea

agreement, United States v. Conner, 930 F.2d 1073, 1076 (4th

Cir.   1991),      or      (2)   the     government’s        refusal      to    move          for    a

reduction    was      based      on    an    unconstitutional        motive.              Wade      v.

United States, 504 U.S. 181, 185-86 (1992).

            If     the     defendant         cannot   show    a    breach       of       her   plea

agreement     or      an    unconstitutional          motive,        “a    claim          that       a

defendant     merely         provided         substantial         assistance         will        not

entitle a defendant to a remedy or even to discovery or an

evidentiary      hearing.              Nor    would   additional          but    generalized

allegations      of      improper       motive.”        Wade,       504     U.S.         at    186.

Huskins asserts that Wade does not apply in her case because she

had a plea agreement, while the defendant in Wade did not.                                          As

explained above, Wade provides that a defendant is entitled to a

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hearing when she makes a threshold showing that the government’s

refusal to make a § 5K1.1 motion was based on “suspect reasons

such as race or religion.”                Wade, 504 U.S. at 185-86.              Huskins

has not made such a claim.

              Relying    principally        on   United      States    v.    Dixon,     998

F.2d 228 (4th Cir. 1993), Huskins contends that the government

may    not    withhold       a    § 5K1.1    motion     on    the     ground     that     a

defendant’s cooperation failed to yield a prosecution.                          Dixon is

distinguishable.         In that case, the government agreed to move

for a § 5K1.1 departure if it deemed the defendant’s cooperation

“in the investigation or prosecution of another person” to be

substantial.         Dixon, 998 F.2d at 229.                 The government later

moved for a § 5K1.1 departure, and then moved to withdraw the

motion to keep the defendant under pressure to testify at an

upcoming      trial.      Id.       at    229-30.      We    held     that    Dixon     was

“entitled to specific performance of the government’s promise to

move    for    a     substantial         assistance     departure”          because     the

government      had     “consistently         deemed      Dixon’s      assistance        in

investigating others substantial.”                  Id. at 231.          In contrast,

Huskins’      plea     agreement         accorded   the      government       unfettered

discretion to determine whether Huskins’ “assistance has been

substantial” and provided that, if the government decided that

her    assistance      was       substantial,    the    government       “may    make     a

motion pursuant to § 5K1.1 for imposition of a sentence below

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the applicable Sentencing Guidelines.”                  The government did not

obligate itself to move for a departure or breach the agreement

by finding Huskins’ assistance less than substantial.

              In her reply brief, Huskins asserts for the first time

that    “it    appears     that    the     majority,        if    not    all,   of    the

information Appellant possessed was provided to the government

before she signed the plea agreement.”                      Huskins concedes that

she is not certain of this fact.                 A guilty plea induced with a

promise that the government knew at the time it would not keep

may be grounds for a rescission of the agreement.                        United States

v. Snow, 234 F.3d 187, 191 (4th Cir. 2000).                         However, because

Huskins did not raise the issue in her opening brief, it is not

properly before this court.               United States v. Lewis, 235 F.3d

215, 218 n.3 (4th Cir. 2000).

              We   therefore      affirm       the   sentence       imposed     by    the

district      court.     We    dispense    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




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