UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4866
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY MACK, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00226)
Submitted: February 15, 2007 Decided: February 20, 2007
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Kimlani
Murray Ford, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Mack, Jr., pled guilty pursuant to a plea
agreement to one count of possession with intent to distribute
cocaine base, one count of possession of a firearm during and in
relation to a drug trafficking crime, and one count of possession
of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1);
924(c)(1); 21 U.S.C. § 841 (2000). Mack was sentenced by the
district court to a total of 137 months’ imprisonment. We affirm
the convictions and sentence.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there were no
meritorious grounds for appeal, but raising the issue of whether
the Government’s failure to request a downward departure under U.S.
Sentencing Guidelines Manual § 5K1.1 (2005) was improper. Mack was
informed of his right to file a pro se supplemental brief, but did
not do so, and the Government elected not to file a responsive
brief.
The decision to file a § 5K1.1 motion is solely within
the Government’s discretion. United States v. Butler, 272 F.3d
683, 686 (4th Cir. 2001). Therefore, unless the Government has
obligated itself in a plea agreement to file a substantial
assistance motion, its refusal to do so is not reviewable unless it
was based on an unconstitutional motive or not rationally related
- 2 -
to a legitimate Government end. Wade v. United States, 504 U.S.
181, 185-87 (1992).
Mack’s plea agreement provided that if the Government,
“in its sole discretion,” determined that Mack had rendered
substantial assistance, it “may make a motion pursuant to U.S.S.G.
§ 5K1.1 for imposition of a sentence below the applicable
Sentencing Guidelines.” Thus, because the Government retained its
discretion to file a § 5K1.1 motion, and Mack has failed to
establish that the Government’s refusal to file was either based on
an unconstitutional motive or not rationally related to a
legitimate Government end, the issue is not reviewable on appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Mack’s convictions 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 presented in the
materials before the court and argument would not aid in the
decisional process.
AFFIRMED
- 3 -