United States v. Derrick McGee , 502 F. App'x 305 ( 2012 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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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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