UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS RICHARD DASHER, a/k/a Timothy Scott
Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:03-cr-00140-JBF)
Submitted: March 28, 2007 Decided: April 16, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Dennis Richard Dasher, Appellant Pro Se. Lisa Rae McKeel, OFFICE OF
THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Richard Dasher seeks to appeal the district
court’s orders denying his motion for a downward departure under
Fed. R. Crim. P. 35(b) and denying his 28 U.S.C. § 2255 (2000)
motion. For the reasons that follow, we affirm in part and dismiss
in part.
The district court denied Dasher’s motion for a reduction
of his sentence under Rule 35(b) as 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). Here, the Government found Dasher’s
assistance insufficient to merit a motion and Dasher has failed to
show 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). Thus, we affirm the district court’s order denying
Rule 35(b) relief.
The second order that Dasher appeals denied his § 2255
motion, on the ground that it was filed beyond the one-year limit
for such actions. The order also denied Dasher’s motion to
reconsider the denial of his Rule 35(b) motion. To the extent
Dasher appeals from the denial of § 2255 relief, the order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of
appealability will not issue absent “a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Dasher has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
this portion of the appeal. 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 IN PART;
DISMISSED IN PART
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