UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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