US v. Norman Dais, No. 08-6913 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6913 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORMAN TYRONE DAIS, Defendant - Appellant.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 Before MOTZ and Circuit Judge. SHEDD, Circuit Decided: Judges, and January 22, 2009 HAMILTON, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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). meritorious Although issues for counsel states appeal, he that there challenges the are no district court s denial of the motion to compel. Dais advances the same challenge in a supplemental pro se brief. 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). refusal to However, move for a a court reduction may of remedy the sentence government s if: (1) the 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 United States, 504 U.S. 181, 185-86 (1992). motive. Wade v. 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 2 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 motion to compel the government to file a Rule 35(b) motion. This court requires that counsel inform his client, in writing, of his right to petition United States for further review. the Supreme Court of the 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 state that a copy thereof was served on the client. 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 3
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