United States v. Haynes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4027
LARRY LEE HAYNES,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CR-95-64)
Submitted: March 13, 1997
Decided: March 21, 1997
Before HALL, ERVIN, and WILKINS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Henry M. Anderson, THE SALEBY LAW FIRM, Florence, South
Carolina, for Appellant. J. Rene Josey, United States Attorney,
Sean
Kittrell, Assistant United States Attorney, Charleston, South
Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Larry Lee Haynes appeals his sentences for various drug
crimes. The plea agreement unambiguously provided that if "Attor-
neys for the Government" determined that Haynes provided substan-
tial assistance, the Government would move for a downward
departure. Although Haynes provided some assistance, the Govern-
ment did not deem the assistance to be substantial, and
consequently
declined to file a USSG § 5K1.1* motion. Haynes claims that the
Government breached the plea agreement by failing to move for a
downward departure and that the district court erred by failing to
find
he provided the Government with substantial assistance. He also
claims that the district court erred by denying his motion to
continue
sentencing. Finding no error, we affirm.
A party alleging breach of a plea agreement bears"the burden of
proving the breach." United States v. Dixon , 998 F.2d 228, 230
(4th
Cir. 1993). While a district court generally cannot review the
Govern-
ment's refusal to move for a § 5K1.1 departure, review is
necessitated
if the defendant makes a "substantial threshold showing" that the
Government's decision was not rationally related to a legitimate
gov-
ernmental objective. Wade v. United States, 504 U.S. 181, 186
(1992). The threshold showing must transcend a mere recitation of
the
assistance provided by the defendant. Id. at 187.
Haynes fails to make a substantial threshold showing. Rather, he
merely offers a description of the extent of his assistance. As the
Supreme Court noted in Wade, "[a]lthough a showing of assistance is
a necessary condition for relief, it is not a sufficient one." Id.
at 187.
We also do not find that the district court abused its discretion
by
denying Haynes' motion to continue the sentencing hearing. See
United States v. Speed, 53 F.3d 643, 644 (4th Cir. 1995). Thus, we
affirm Haynes' sentences. We grant Appellant's motion to file a pro
se supplemental formal brief but find the claims raised therein to
be
without merit. We deny Haynes' motion for "Disclosure of Signed
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*United States Sentencing Commission, Guidelines Manual, § 5K1.1
(Nov. 1995). Haynes was sentenced in December 1995.
2
Grand Jury Concurrence Form." 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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