                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4224
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Christopher Allen Landis,              *
                                       *     [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                             Submitted: February 16, 2007
                                Filed: February 23, 2007
                                 ___________

Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Christopher Allen Landis pled guilty to conspiring to distribute
methamphetamine, see 21 U.S.C. §§ 841 (b)(1)(A), 846 (2000), and carrying a firearm
in relation to a drug offense, see 18 U.S.C. § 924(c)(1)(A)(i) (2000). At sentencing,
the government moved for a reduction in sentence of twelve months based on Landis’s
substantial assistance. However, the district court1 granted a twenty-five month
reduction and sentenced Landis to 156 months imprisonment. Landis appeals the
district court’s order denying his request for an evidentiary hearing on his motion to

      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
compel the government to move, pursuant to Federal Rule of Criminal Procedure
35(b), for an additional sentence reduction based on Landis’s substantial assistance.
We affirm.

        On July 19, 2002, Landis entered into a plea agreement, which provides in part
that:

        The United States makes no representations or promises as to the
        sentence to be imposed, as this is solely within the District Court’s
        discretion. Although the parties may have discussed the possibilities of
        various factors having an impact on the sentence and the possibility of
        a certain sentencing range, the parties agree that no discussion resulted
        in any express or implied promise or guarantee concerning the actual
        sentence to be imposed.

The agreement further states that:

        The decision to file a motion for departure will be in the sole discretion
        of the United States Attorney. The Defendant understands that the
        United States Attorney will decide whether the Defendant has performed
        substantial assistance sufficient to warrant such a motion. A proffer
        interview or a debriefing statement does not necessarily constitute
        substantial assistance to the United States. The Defendant further
        understands that if a motion is filed, the Court will decide whether the
        Defendant has performed substantial assistance and, if so, the amount of
        reduction in sentence that is to be granted.

       At the sentencing hearing, attorney Michael Levy represented Landis.
Following his sentencing, Landis, believing that Levy continued to represent him,
communicated with Levy allegedly with regard to Landis’s assistance to the
government concerning an individual named Alberto Torres. Later, Landis learned
that Levy had represented Torres. However, Levy disputes that he represented Landis
and Torres concurrently. Levy further denies that he received information from
Landis regarding Torres while serving as Torres’ attorney.

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       On appeal, Landis contends that he is entitled to an evidentiary hearing on his
motion to compel the government to move for an additional sentence reduction based
on his substantial assistance. In order for Landis to obtain an evidentiary hearing, he
must make a substantial threshold showing that the government’s refusal to move for
an additional sentence reduction was irrational or based on an unconstitutional motive.
See Wade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Mullins,
399 F.3d 888, 890 (8th Cir. 2005). Absent this showing, Landis “is not entitled to any
remedy or even an evidentiary hearing.” Mullins, 399 F.3d at 890 (quoting United
States v. Hardy, 325 F.3d 994, 996 (8th Cir. 2003) (citations omitted)).

        In an effort to show bad faith or irrationality on the government’s part, Landis
claims that, prior to entering into the plea agreement, Alcohol, Tobacco and Firearms
(“ATF”) Special Agent Mickey Leadingham promised Landis that he would receive
a 50% reduction in sentence for his substantial assistance. However, the plea
agreement Landis subsequently executed is to the contrary. There, Landis
acknowledged that the government had made no promise to him regarding his
sentence. Further, although the plea agreement required the government to consider
the nature and value of any cooperation Landis provided, it did not obligate the
government to seek a reduction in sentence. Moreover, the agreement acknowledged
that, even where the government moved for a reduction in sentence, it could not
guarantee a specific sentence reduction because the sentencing court determines the
reduction amount. At sentencing, the district court asked Landis if it should consider
any additional information, and Landis’s statement to the court does not reference
Agent Leadingham or his alleged promise. Finally, the government did, in fact, move
for a sentence reduction based on Landis’s substantial assistance, and the district court
exceeded the reduction recommended by the government.

      Landis also contends that Agent Leadingham made post-sentencing
representations that information Landis provided both pre- and post-sentencing had
become “valuable,” resulting in three convictions in Nebraska. The government


                                           -3-
investigated this assertion, contacting numerous assistant United States attorneys in
the District of Nebraska, ATF agents, including Agent Leadingham, and at least one
state prosecutor. However, the government determined that Landis had not provided
substantial assistance warranting an additional motion for sentence reduction.

      Finally, Landis suggests that attorney Levy’s alleged conflict of interest
demonstrates Landis’s entitlement to an evidentiary hearing. However, Landis
provides no authority supporting this proposition, and we find none. To the extent
Landis contends that he received ineffective assistance of counsel, such a claim is
normally cognizable in a properly filed 28 U.S.C. § 2255 action. See United States
v. Davis, 452 F.3d 991, 994 (8th Cir. 2006). Accordingly, we decline to address the
merits of Landis’s ineffective-assistance claim in this appeal.

        We find that Landis’s allegations do not amount to a substantial threshold
showing that the government acted irrationally or in bad faith in determining not to
file an additional substantial assistance motion. Because Landis did not make the
requisite showing, the district court did not err in denying his request for an
evidentiary hearing. See Wade, 504 U.S. at 186; Mullins, 399 F.3d at 890.

      We affirm the district court’s judgment.
                      ______________________________




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