UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDDY HURTADO,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:03-cr-00014-RLV-CH-3)
Submitted: October 14, 2008 Decided: October 16, 2008
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddy Hurtado appeals from his mandatory minimum
240-month sentence imposed after he received a downward variance
and after he pled guilty to conspiracy to possess with intent to
distribute cocaine and heroin. Hurtado’s counsel filed an
Anders v. California, 386 U.S. 738 (1967) brief, Hurtado filed a
pro se supplemental brief, and the Government has declined to
file a brief. We affirm.
Hurtado argues that his plea was involuntary because
he believed he would receive one less drug felony in the 21
U.S.C. § 851 (2000) information and the Government would file a
U.S. Sentencing Guidelines Manual § 5K1.1 (2006) motion. He
requests a sentence below the statutory minimum. He does not
request that his guilty plea be invalidated, however.
Hurtado’s plea agreement does not contain a promise that the
Government would file a § 5K1.1 motion. The Fed. R. Crim. P. 11
hearing transcript clearly indicates that the plea was based on
leaving off one of Hurtado’s drug felonies in the § 851
information but that the Government would not file a § 5K1.1
motion. Hurtado agreed with the summary of the plea agreement
and that no other agreements were made outside the plea
agreement.
Hurtado’s plea agreement did not obligate the
Government to move for a § 5K1.1 departure even if Hurtado
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provided substantial assistance. Hurtado does not allege, and
the record does not disclose, any evidence that the Government
refused to make the motion based on any unconstitutional motive.
See Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding
that “federal district courts have authority to review a
prosecutor’s refusal to file a substantial assistance motion and
to grant a remedy if they find that the refusal was based on an
unconstitutional motive.”). Therefore, Hurtado’s claim fails.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Hurtado’s 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 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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