UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6913
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NORMAN TYRONE DAIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00386-TLW-1)
Submitted: January 15, 2009 Decided: January 22, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman Tyrone Dais appeals the district court’s denial
of his motion to compel the government to file a Fed. R. Crim.
P. 35(b) motion for reduction of sentence. Dais’ attorney has
filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967). Although counsel states that there are no
meritorious issues for appeal, he challenges the district
court’s denial of the motion to compel. Dais advances the same
challenge in a supplemental pro se brief. We affirm.
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). However, a court may remedy the government’s
refusal to move for a reduction of sentence if: (1) the
government has obligated itself in the plea agreement to move
for a reduction; or (2) 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). Here, the plea
agreement entered into between Dais and the government clearly
and unequivocally establishes that the decision whether to file
a Rule 35(b) motion rested within the sole discretion of the
government. Moreover, there is no evidence that the
government’s refusal to file a Rule 35(b) motion was based on an
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unconstitutional motive. Thus, we find no error by the district
court in denying Dais’ motion to compel.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s order denying
Dais’ motion to compel the government to file a Rule 35(b)
motion. 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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