United States v. Huskins

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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