UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 99-4836
ROBERT FRAZIER VEREEN, a/k/a Pooh,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-98-298-MU)

                      Submitted: August 12, 2002

                      Decided: August 30, 2002

    Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Norman Butler, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. VEREEN
                               OPINION

PER CURIAM:

   Robert Frazier Vereen appeals the 292-month sentence he received
after his guilty plea to conspiracy to possess an unspecified quantity
of cocaine, cocaine base (crack), and marijuana with intent to distrib-
ute, 21 U.S.C. §§ 841, 846 (2000). He contends that the government’s
refusal to move for a substantial assistance departure, U.S. Sentencing
Guidelines Manual § 5K1.1, p.s. (2001), was based on the unconstitu-
tional motive of racial discrimination. We affirm.

   Vereen was involved in a drug conspiracy during which, with his
co-conspirators, he participated in an attempted robbery which
resulted in the shooting death of the victim. While he was a suspect
in the murder investigation, Vereen agreed to an interview by a state
law enforcement agent and gave a detailed statement describing the
murder. After Vereen was indicted on federal drug and firearms
charges, the state murder charge was dropped. At the government’s
request, the district court agreed in December 1998 to release Vereen
on unsecured bond with a special condition of house arrest and elec-
tronic monitoring. On January 4, 1999, he was released from custody.
Vereen pled guilty to Count One of the federal indictment on March
31, 1999. His four co-conspirators pled guilty to the same charge at
about the same time. Vereen’s plea agreement provided that he would
cooperate with the government, and that the government would deter-
mine in its sole discretion whether his assistance was substantial. The
agreement further provided that "any determination that the defendant
has failed to provide substantial assistance . . . is within the sole dis-
cretion of the United States, and the defendant waives all objections
and rights of appeal or collateral attack of such a determination."

   Vereen stipulated in the plea agreement that he was subject to a
statutory maximum of life imprisonment, and that there was a factual
basis for the guilty plea. At his Fed. R. Crim. P. 11 hearing, Vereen
also stipulated that the quantity of drugs involved in the conspiracy
reasonably foreseeable to him would subject him to a statutory sen-
tencing range of ten years to life imprisonment. In calculating Ver-
een’s guideline range, the probation officer relied on an information
filed by the government in November 1998, which alleged that the
                       UNITED STATES v. VEREEN                        3
conspiracy involved more than five kilograms of cocaine, more than
fifty grams of crack, and more than thirty pounds of marijuana. How-
ever, Vereen’s base offense level was set at 43 because of a cross ref-
erence that accounted for the murder. USSG §§ 2D1.1(d)(1), 2A1.1.
With an adjustment for acceptance of responsibility, his offense level
decreased to 40. He was in criminal history category I, giving him a
guideline range of 292-365 months. Vereen did not object to the
guideline range calculation.

   At sentencing, the government refused to move for a substantial
assistance departure on the ground that Vereen provided no further
assistance after he was released on bond, and because of reports that
Vereen was selling drugs while on bond, had failed a polygraph test,
and admitted to the state agent who initially interviewed him about
the murder that he had been using marijuana regularly. Vereen’s
attorney moved to compel a substantial assistance motion based on
his assistance in the murder investigation; Vereen denied any involve-
ment with drugs after his release on bond.

   The district court found that Vereen had provided substantial assis-
tance, but that it could not compel the government to move for a sub-
stantial assistance departure because its refusal to do so was not based
on an unconstitutional motive. Under Wade v. United States, 

, 185-86 (1992), when the plea agreement gives the government
discretion to determine whether the defendant has rendered substan-
tial assistance, the sentencing court has authority to review the prose-
cutor’s decision not to file a substantial assistance motion only if it
finds that the decision was based on an unconstitutional motive such
as race or religion. A claim that a defendant merely provided substan-
tial assistance is not enough to gain a remedy, discovery, or an evi-
dentiary hearing. Id. at 186. Moreover, "generalized allegations of
improper motive" are insufficient; a defendant must make a "substan-
tial threshold showing" to be entitled to discovery or an evidentiary
hearing. Id. (citation omitted).

   Vereen made no claim of improper motive at sentencing. He sim-
ply claimed that his assistance had been substantial. On appeal, he
asserts that there is reason to believe that the government was moti-
vated by racial discrimination because he is a black male while the
homicide victim was a white female, the defendants who were prose-
4                      UNITED STATES v. VEREEN
cuted on federal charges are black males, and the two white females
involved in the robbery were charged only in state court and received
lesser sentences. The government responds that the white female co-
conspirators were juveniles with minimal involvement in the drug
conspiracy. On these facts, we cannot say that Vereen has made a
substantial threshold showing of racial discrimination.

   We also note that Vereen’s 292-month sentence exceeds the twenty
year statutory maximum sentence applicable to the offense pursuant
to § 841(b)(1)(C) because the indictment did not charge the required
threshold quantities of drugs for an enhanced sentence under
§ 841(b). See Apprendi v. New Jersey, 

, 490 (2000);
United States v. Promise, 

, 152 (2001) (en banc), cert.
denied, 

 (2002). Vereen did not raise the issue in the
district court and has not raised it on appeal. Even if we were to take
up the issue, sua sponte, see Fed. R. Crim. P. 52(b), we would con-
clude that the error, while plain, does not require that the sentence be
overturned because Vereen provided overwhelming and essentially
uncontroverted evidence that he was responsible for at least the
required threshold amounts by so stipulating. See United States v.
Cotton, 

, 1786-87 (2002).

  We therefore affirm the sentence. 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