US v. Raishawn Smith, No. 12-4770 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4770 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAISHAWN MAURICE SMITH, a/k/a Ray Shawn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. (8:11cr-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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 distribute one count controlled each of possession substances, in with violation of intent 21 to 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 assistance before his sentencing. to provide substantial We find no error and affirm the district court s judgment. Because district court, Smith our did review not is raise for this plain argument error. States v. Olano, 507 U.S. 725, 732 37 (1993). plain error, Smith must show that: See in the United To establish (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, reputation of judicial proceedings. marks omitted). 2 integrity or public Id. (internal quotation 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. United States v. Snow, 234 F.3d 187, 190 (4th Cir. See 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 constitutional limits). discretion is subject to 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. 178 F.3d at substantial 189. A assistance showing is that necessary, entitle the defendant to relief. the but defendant not Huang, provided sufficient, to 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. the plea agreement provided, in pertinent part, Rather, 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 3 decision not to make a 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 speculation or unconstitutional that the motive, Government did he not presents provide only him with sufficient opportunity to cooperate. The Supreme Court imposes upon more a defendant the motive unconstitutional burden or judicial inquiry, however. to bad do faith than in merely order Wade, 504 U.S. at 186. to allege require 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. bad the faith trigger on the further part of judicial Because Smith s speculation of Government inquiry, we find is insufficient no error in to 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. dispense with oral argument because 4 the facts and We legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5

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