                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4755



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THOMAS L. JACOBS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.  Lacy H. Thornburg,
District Judge. (3:04-cr-00190-LHT-2)


Submitted:   June 27, 2007                  Decided:   July 17, 2007


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


Affirmed by unpublished per curiam opinion.


R. Edward Hensley, Jr., Maggie Valley, North Carolina, for
Appellant.   Gretchen C. F. Shappert, United States Attorney,
Kenneth Smith, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Thomas L. Jacobs appeals his convictions and sentence to

30 months in prison, restitution, and three years of supervised

release following his guilty plea to conspiracy to defraud the

United States in violation of 18 U.S.C. § 371 (2000), wire fraud in

violation of 18 U.S.C. §§ 2, 1343 (2000), conspiracy to commit

money laundering in violation of 18 U.S.C. § 1956(h) (2000), money

laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A) (2000),

and two counts of money laundering in violation of 18 U.S.C. §§ 2,

1956(a)(1)(B) (2000).      Jacobs contends the Government’s conduct

surrounding the entry of his guilty plea gave rise to an inference

of bad faith, and the district court erred in denying his motion to

withdraw his guilty plea without eliciting sworn testimony on the

issue.   Finding no error, we affirm.*

           A   defendant   may   withdraw   a   guilty   plea   prior   to

sentencing if he “can show a fair and just reason for requesting

the withdrawal.”    Fed. R. Crim. P. 11(d)(2)(B).         We review the

district court’s denial of a motion to withdraw a guilty plea for

abuse of discretion.    United States v. Ubakanma, 215 F.3d 421, 424

(4th Cir. 2000).   “The most important consideration in resolving a



     *
      Although the Government contends this appeal should be
dismissed as barred by Jacobs’s appellate waiver covering the
Government’s substantial assistance decision, see United States v.
Blick, 408 F.3d 162, 168-69 (4th Cir. 2005), we conclude the issues
raised by Jacobs fall outside the scope of that waiver and within
an exception for prosecutorial misconduct claims.

                                    2
motion to withdraw a guilty plea is an evaluation of the Rule 11

colloquy at which the guilty plea was accepted.”   United States v.

Bowman, 348 F.3d 408, 416 (4th Cir. 2003).    A properly conducted

guilty plea colloquy raises a strong presumption that the plea is

final and binding.   United States v. Lambey, 974 F.2d 1389, 1394

(4th Cir. 1992) (en banc).

          Based on our review of the record, we conclude the

district court did not abuse its discretion in denying Jacobs’s

motion to withdraw his guilty plea.   In his motion, Jacobs alleged

that the day before entering his guilty plea, he was told by the

Government that he would be called as a witness against his co-

defendant and could receive a sentence reduction for substantial

assistance, but the day after entering his plea, the Government

informed him that he would not be called as a witness.        Jacobs

contended he would not have pled guilty but for the Government’s

promise, and his plea was not knowing or voluntary. The Government

filed a response in opposition, and the magistrate judge who had

accepted Jacobs’s guilty plea held a hearing on the motion.

          The Government acknowledged expressing interest in using

Jacobs as a witness but denied making any promises.   Moreover, the

Government had always made it clear that any use of Jacobs as a

witness was conditional on him being forthright and giving truthful

and complete information.    At the third meeting with Jacobs, the

Government concluded he had not and would not provide complete and


                                 3
truthful information, and the Government had to prepare its case

against Jacobs’s co-defendant without him.

          Jacobs’s claims were further contradicted by his plea

agreement and guilty plea colloquy conducted in compliance with

Fed. R. Crim. P. 11.   The plea agreement provided that if requested

by the Government, Jacobs agreed to assist the Government by

providing truthful information and testimony.      If any assistance

was substantial, the Government agreed it may move for a sentence

reduction, but the Government retained the sole discretion to

determine whether the assistance was substantial or whether Jacobs

had provided false information.       At his Rule 11 hearing, Jacobs

affirmed that he understood and agreed to the terms of his plea

agreement, and other than those terms, no one had made any promises

of leniency or light sentence to induce him to plead guilty.     The

magistrate judge found Jacobs’s plea was knowing and voluntary.

          At the hearing on his motion to withdraw the plea, both

Jacobs and his counsel were given the opportunity to speak in

support of the motion. The magistrate judge denied the motion, and

the district court denied Jacobs’s appeal of the decision.        At

sentencing, Jacobs stipulated that there was a factual basis for

his guilty plea, and the district court entered a verdict of

guilty.   Jacobs did not object when the Government failed to move

for a sentence reduction based on substantial assistance, and

neither party objected to the presentence report.       The district


                                  4
court sentenced Jacobs to the low end of his advisory guideline

range.

           On appeal, Jacobs contends that the Government’s conduct

surrounding the entry of his guilty plea gave rise to an inference

that it acted in bad faith and for unconstitutional purposes, and

the district court erred in failing to elicit sworn testimony on

the issue of bad faith and relying on only oral argument when

deciding his motion to withdraw his plea.          We conclude that these

issues are without merit.       Jacobs neither alleged any actual bad

faith in the district court nor requested that sworn testimony be

taken at his hearing on the motion to withdraw his plea.         Moreover,

Jacobs was not entitled to an evidentiary hearing on the issue

because he failed to make a substantial threshold showing that the

Government acted for improper reasons.       See Wade v. United States,

504 U.S. 181, 186-87 (1992).     Finally, even if Jacobs had made such

a showing, the hearing afforded him was sufficient under the facts

and circumstances of this case.      See United States v. Knights, 968

F.2d 1483, 1487 (2d Cir. 1992) (noting that the kind of hearing

required, “whether it be merely oral argument or should include a

formal evidentiary hearing is a matter that lies within the sound

discretion of the district court”).

           Accordingly, we affirm Jacobs’s convictions and sentence.

We   dispense   with   oral   argument   because   the   facts   and   legal




                                    5
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




                                6
