UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4000
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY ALEXANDER RUSH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-99-86)
Submitted: May 13, 2004 Decided: May 19, 2004
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Helen Eckert Phillips, Stanardsville, Virginia, for Appellant.
Morgan Eugene Scott, Acting United States Attorney, Roanoke,
Virginia, Jean Barrett Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Alexander Rush pleaded guilty to conspiracy to
distribute more than fifty grams of cocaine base, in violation of
21 U.S.C. § 846 (2000). The Government filed an information
pursuant to 21 U.S.C. § 851 (2000). Rush was sentenced to 240
months incarceration, ten years supervised release, and a $100
special assessment. His attorney has filed an appeal under
Anders v. California, 386 U.S. 738 (1967), raising five issues but
asserting there are no meritorious claims on appeal. Rush filed a
supplemental informal brief in which he joins three of these
issues.
First, Rush alleges the sentencing parameters in the
written plea agreement were changed without his knowledge. Rush
was informed of the mandatory minimum sentence of twenty years
during the Fed. R. Crim. P. 11 hearing, and Rush indicated his
understanding of the minimum term. We find Rush was properly
informed of the sentencing parameters.
Next, Rush asserts he did not receive copies of the
discovery material but instead received written summaries from
counsel, and the Government’s prosecution of him was malicious
because the Government lacked probable cause. Rush and his co-
defendants were video-recorded making numerous sales to an uncover
agent who testified at the Rule 11 hearing detailing the purchases
made from Rush and his co-defendants. The Government possessed
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probable cause to charge Rush with conspiracy to distribute cocaine
base. Rush’s acknowledgment of his guilt at the Rule 11 hearing
demonstrates Rush acknowledged sufficient evidence existed to
convict him of the conspiracy despite not having all the discovery
materials in his possession.
Rush alleges his trial counsel provided ineffective
assistance. We review this claim to assess whether the record
conclusively establishes Rush’s trial counsel was ineffective. We
hold the record does not conclusively establish Rush’s trial
counsel was ineffective. We deny relief on this claim without
prejudice to Rush’s ability to allege ineffective assistance on
collateral review. United States v. Richardson, 195 F.3d 192, 198
(4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir.
1997).
Finally, Rush asserts the Government failed to move for
a downward departure pursuant to United States Sentencing
Guidelines Manual § 5K (2002) despite the assistance he provided.
When, as in this case, the plea agreement accords the Government
sole discretion whether to file a substantial assistance motion,
the defendant generally may not complain about the failure to file
such a motion. See United States v. Wallace, 22 F.3d 84, 87 (4th
Cir. 1994). Rush identifies no exception to this rule that would
apply to his case. Therefore, we find no error.
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Accordingly, we affirm Rush’s conviction and sentence.
We deny counsel’s motion to withdraw. In accordance with Anders,
we have reviewed the entire record in this case and find no other
meritorious issues for appeal. This court requires that counsel
inform his client, in writing, 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
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
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