UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4710
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN ALBERT THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (CR-01-84)
Submitted: June 24, 2004 Decided: June 29, 2004
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Robert
James Conrad, Jr., United States Attorney, Brian Steven Cromwell,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Albert Thompson pled guilty without a plea agreement
to bank robbery and bank larceny, 18 U.S.C.A. § 2113(a), (b) (West
2000 & Supp. 2004), charges arising from his participation in a
robbery of the Central Carolinas Bank in Monroe, North Carolina, on
May 3, 2001. He was charged separately with conspiracy to commit
bank robbery, 18 U.S.C. § 371 (2000), and pled guilty to that
offense pursuant to a plea agreement. Thompson’s attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether the government breached the plea
agreement by its failure to move for a downward departure for
substantial assistance, U.S. Sentencing Guidelines Manual § 5K1.1,
p.s. (2002), but asserting that, in his view, there are no
meritorious issues for appeal.* Thompson has been informed of his
right to file a pro se supplemental brief and has chosen not to
file a brief. We affirm the convictions and eighty-four-month
sentence.
Thompson’s plea agreement for the conspiracy count
provided that the government, “in its sole discretion,” would
determine whether Thompson’s assistance was substantial and, if his
assistance was deemed substantial, the government “may make a
*
Pursuant to the plea agreement, Thompson waived the right to
appeal his sentence for the conspiracy conviction, but reserved the
right to raise issues involving prosecutorial misconduct and
ineffective assistance of counsel.
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motion” for a downward departure based on his substantial
assistance. At the sentencing hearing, the government informed the
district court that it would not move for a substantial assistance
departure because Thompson’s assistance was still ongoing. Because
the agreement did not obligate the government to move for a
departure, the district court was without authority to compel a
motion unless Thompson demonstrated that the government’s failure
to file the motion resulted from an unconstitutional motive or was
not rationally related to a legitimate government end. United
States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001) (internal
quotation and citation omitted). Thompson did not attempt to make
this showing.
Pursuant to Anders, this court has reviewed the record
for reversible error and found none. We therefore affirm the
conviction and sentence. 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 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
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presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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