UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4252
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVON RAYMUS STURDIVANT,
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. (3:06-cr-00194-RJC-1)
Submitted: March 4, 2009 Decided: March 23, 2009
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Long, POYNER & SPRUILL, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:
In accordance with a plea agreement, Devon R.
Sturdivant pled guilty to conspiracy to attempt to possess with
intent to distribute cocaine, 21 U.S.C. § 846 (2006), and
possession of a firearm in furtherance of a drug trafficking
crime, 18 U.S.C. § 924(c)(1) (2006). He was sentenced to 262
months in prison. Sturdivant now appeals. His attorney has
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), questioning whether the United States should have moved
for a downward departure based on Sturdivant’s substantial
assistance, but stating that there are no meritorious issues for
appeal. Sturdivant has filed a pro se informal brief raising an
additional issue. We affirm.
In imposing the 262-month sentence, the district court
considered the factors set forth at 18 U.S.C. § 3553(a) (2006).
With regard to “the history and characteristics of the
defendant,” the court stated that it would take into
consideration Sturdivant’s efforts to cooperate with the
Government. Balancing this cooperation, however, was
Sturdivant’s extensive criminal history.
In the Anders brief, counsel contends that the United
States should have moved for a downward departure based on
Sturdivant’s substantial assistance to the United States. See
USSG § 5K1.1. The decision whether to file a § 5K1.1 motion
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rests solely within the Government’s discretion. United
States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus,
unless the Government has obligated itself in the plea agreement
to make such a motion, its refusal to make a § 5K1.1 motion is
not reviewable absent evidence of an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272
F.3d at 686-87.
Sturdivant’s plea agreement did not obligate the
United States to file a § 5K1.1 motion; rather, the agreement
clearly stated that the decision whether to file such a motion
lay within the sole discretion of the United States. This
provision was summarized at Sturdivant’s arraignment. Further,
there is nothing in the record to suggest that the decision not
to file a § 5K1.1 motion had an unconstitutional motivation.
In his informal brief, Sturdivant contends that Count
Two of the indictment, which charged him with the firearm
offense, was unconstitutional and deprived the court of
jurisdiction. This claim is without merit. Defects in an
indictment are not jurisdictional. United States v. Cotton, 535
U.S. 625, 631 (2002). Further, Sturdivant’s valid guilty plea
waived this claimed non-jurisdictional defect. See Tollett v.
Henderson, 411 U.S. 258, 267 (1973); United States v. Willis,
992 F.2d 489, 490 (4th Cir. 1993).
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We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This
court require 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, counsel may move in this court for leave to withdraw
from representation. Counsel=s motion must state that a copy of
the motion was served on the client. The motions to dismiss
Count Two of the indictment and to correct jurisdictional defect
are denied. We deny as moot the motions for fair and impartial
review and to expedite. 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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