United States v. Raishawn Smith , 526 F. App'x 293 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4770
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAISHAWN MAURICE SMITH, a/k/a Ray Shawn Smith, a/k/a Rai
Shawn Smith, a/k/a RaiShawn Smith,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:11-
cr-00694-RWT-1)
Submitted: May 30, 2013 Decided: June 4, 2013
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
A. D. Martin, LAW OFFICE OF ANTHONY D. MARTIN, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Kristi N. O’Malley, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raishawn Maurice Smith pled guilty pursuant to a plea
agreement to one count each of possession with intent to
distribute controlled substances, in violation of 21 U.S.C.
§ 841(a)(1) (2006); possession of a firearm in furtherance of
drug trafficking offenses, in violation of 18 U.S.C.A. § 924(c)
(West Supp. 2012); and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was
sentenced to ninety-seven months in prison. Smith appeals the
district court’s judgment, asserting only that the Government
acted in bad faith by failing to vouch for him at sentencing and
by not providing him an opportunity to provide substantial
assistance before his sentencing. We find no error and affirm
the district court’s judgment.
Because Smith did not raise this argument in the
district court, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 732–37 (1993). To establish
plain error, Smith must show that: (1) an error occurred; (2)
the error was plain; and (3) the error affected his substantial
rights. Id. at 732. Even if Smith makes this showing, we will
exercise our discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
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When a plea agreement does not obligate the government
to make a motion if the defendant provides substantial
assistance, the government’s decision not to make a motion may
be reviewed only for bad faith or unconstitutional motive. See
United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000).
(citing United States v. Huang, 178 F.3d 184, 188-89 (3d Cir.
1999)); see also Wade v. United States, 504 U.S. 181, 185-86
(1992) (holding that prosecutor’s discretion is subject to
constitutional limits). A good faith decision is one that is
“based on an honest evaluation of the assistance provided and
not on considerations extraneous to that assistance.” Huang,
178 F.3d at 189. A showing that the defendant provided
substantial assistance is necessary, but not sufficient, to
entitle the defendant to relief. Wade, 504 U.S. at 186-87.
Rather, the defendant must show that the government’s decision
not to make a substantial assistance motion was not rationally
related to a legitimate government end, to include “the cost and
benefit that would flow from moving.” Id. at 187.
Here, the Government did not obligate itself in the
plea agreement to make a substantial assistance motion. Rather,
the plea agreement provided, in pertinent part, that the
Government would make such a motion if Smith cooperated and the
Government deemed his cooperation to be substantial assistance.
Thus, the Government’s discretionary decision not to make a
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substantial assistance motion is not reviewable if there is no
evidence that the decision was based on an unconstitutional
motive or bad faith.
Although Smith asks this court for a remand and an
evidentiary hearing so he can be assured that the reasons for
denying him a substantial assistance motion were not based on
bad faith or unconstitutional motive, he presents only
speculation that the Government did not provide him with
sufficient opportunity to cooperate. The Supreme Court imposes
upon a defendant the burden to do more than merely allege
unconstitutional motive or bad faith in order to require
judicial inquiry, however. Wade, 504 U.S. at 186. Notably, a
defendant must make “a substantial threshold showing[,]” failing
which he is “not entitle[d] [] to a remedy or even to discovery
or an evidentiary hearing.” Id. Because Smith’s speculation of
bad faith on the part of the Government is insufficient to
trigger further judicial inquiry, we find no error in the
district court’s failure to conduct an evidentiary hearing into
the Government’s refusal to make a substantial assistance
motion.
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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