US v. Norman Dais

Filing 920090122

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-6913

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORMAN TYRONE DAIS, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:03-cr-00386-TLW-1)

Submitted:

January 15, 2009

Decided:

January 22, 2009

Before MOTZ and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

David B. Betts, Columbia, South Carolina, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Norman Tyrone Dais appeals the district court's denial of his motion to compel the government to file a Fed. R. Crim. P. 35(b) motion for reduction of sentence. Dais' attorney has

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Although issues for counsel appeal, states he that there the are no

meritorious

challenges

district

court's denial of the motion to compel. challenge in a supplemental pro se brief.

Dais advances the same We affirm.

It is well-settled that whether to file a Rule 35(b) motion is a matter left to the government's discretion. Fed. R.

Crim. P. 35(b); United States v. Dixon, 998 F.2d 228, 230 (4th Cir. 1993). to However, move for a a court may of remedy the government's (1) the

refusal

reduction

sentence

if:

government has obligated itself in the plea agreement to move for a reduction; 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).

Here, the plea

agreement entered into between Dais and the government clearly and unequivocally establishes that the decision whether to file a Rule 35(b) motion rested within the sole discretion of the government. Moreover, there is no evidence that the

government's refusal to file a Rule 35(b) motion was based on an

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unconstitutional motive.

Thus, we find no error by the district

court in denying Dais' motion to compel. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. Dais' We therefore affirm the district court's order denying to compel the government to file a Rule 35(b)

motion

motion. writing,

This court requires that counsel inform his client, in of his right to petition the Supreme Court of the

United States for further review.

If the client requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense

state that a copy thereof was served on the client.

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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