                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4479


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK JERMAINE MCGEE, a/k/a Snake,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-02026-GRA-5)


Submitted:   December 18, 2012            Decided:   December 28, 2012


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas J. Quinn, Greenville, South Carolina, for Appellant.
William N. Nettles, United States Attorney, E. Jean Howard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Derrick    Jermaine        McGee   appeals     the   district   court’s

judgment imposing a 120-month sentence following McGee’s guilty

plea to conspiracy to possess with intent to distribute and to

distribute 280 grams or more of cocaine base and 5 kilograms or

more of cocaine.         On appeal, McGee contends that the district

court committed procedural sentencing error by failing to hold

an    evidentiary      hearing     to    determine     whether       the   Government

improperly refused to seek a downward departure for substantial

assistance.

             Because McGee did not request an evidentiary hearing

on this matter in the district court, we review for plain error

the district court’s failure to sua sponte hold an evidentiary

hearing.     See United States v. Olano, 507 U.S. 725, 732 (1993).

To establish plain error, McGee must show (1) there was error,

(2)    the   error     was   plain,      and    (3)   the    error    affected    his

substantial rights.          Id.   If these requirements are met, we will

notice the error only if it “seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                          Id.

(internal quotation marks and alteration omitted).

             Generally,      the    government        has    sole    discretion    to

determine whether to file a substantial assistance motion.                        See

United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001).

According to this circuit’s well-settled precedent, a district

                                           2
court lacks the authority to review a prosecutor’s failure to

file a substantial assistance motion, or to grant a departure

for such assistance in the absence of a motion, unless (1) the

motion     is    required      by     an     express       provision       of    the       plea

agreement,      or    (2)    the    prosecutor’s          refusal     is    based         on    an

unconstitutional         motive       or    not     rationally        related         to       any

legitimate government end.                 See Wade v. United States, 504 U.S.

181, 186-87 (1992); United States v. Wallace, 22 F.3d 84, 87

(4th Cir. 1994).         If the defendant fails to make “‘a substantial

threshold showing’” of one of these bases, “he is ‘not entitled

to a remedy or even to discovery or an evidentiary hearing.’”

Wallace, 22 F.3d at 87 (quoting Wade, 504 U.S. at 186) (internal

alterations omitted).

               While McGee encourages this court to adopt the Second

Circuit’s “quasi-contractual” approach to substantial assistance

motions, his request for a more searching standard of review is

flatly contradicted by our observation that “[t]his court has

followed the Supreme Court’s lead and strictly interpreted the

Wade     exceptions,        holding    that       the    decision     not       to    make       a

downward departure motion is properly within the [G]overnment’s

discretion.”         Butler, 272 F.3d at 686.               Because McGee advocates

a change in the law, the district court’s failure to anticipate

such a change and to sua sponte hold an evidentiary hearing

under    the    Second      Circuit    standard         could   not   amount         to    plain

                                              3
error.     See United States v. Chong Lam, 677 F.3d 190, 201 (4th

Cir. 2012) (“An error is plain when it is obvious or clear under

current    law.”       (internal        quotation        marks       omitted)).         In    any

event, the record simply provides no nonspeculative basis to

conclude       that      the    Government’s             failure        to    seek      further

assistance from McGee was in any way based on an improper motive

or bad faith, including any decision by the Government not to

seek further assistance from McGee prior to, or at the time of,

the plea agreement.

               Applying      the   Wade       standard,     we       conclude     that       McGee

cannot     demonstrate         entitlement          to     an    evidentiary         hearing.

McGee’s    plea       agreement        clearly     vested       in    the    Government       the

discretion       to    determine         whether      McGee          provided     substantial

assistance.            The     agreement         places     no        obligation        on    the

Government to seek McGee’s assistance in any particular fashion

or to any particular degree.                       Thus, McGee cannot demonstrate

that     the    Government         was     required        to        seek     a   substantial

assistance      motion       under      the    agreement’s           terms.       See    United

States v. Peglera, 33 F.3d 412, 413 (4th Cir. 1994) (holding

that the government is bound only to promises actually made to

the defendant in a plea agreement).

               Likewise, there is no evidence to suggest that the

failure    to     move    for      a    downward     departure          resulted     from      an

unconstitutional          motive.          Additionally,             although     McGee       was

                                               4
available to provide assistance as requested by the Government,

he   does    not     demonstrate         that        he,     in        fact,       provided       such

assistance.         Thus,       McGee    has        failed       to     make       a    substantial

showing     that    the    Government’s         refusal           to    file       a    substantial

assistance motion was not rationally related to any legitimate

government end.

             Because       McGee      did    not         make     the       requisite          showing

required    by     Wallace      and     Wade,       we    conclude          that       the   district

court did not err, plainly or otherwise, in refusing to hold an

evidentiary        hearing      to    investigate          the     Government’s              motives.

Accordingly,        we    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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