UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE GARCIA ORELLANA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T.S. Ellis III, Senior
District Judge. (1:07-cr-00225-TSE-1)
Submitted: April 28, 2011 Decided: May 2, 2011
Before DAVIS, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark Diamond, Richmond, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Joseph V. Moreno, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Garcia Orellana appeals the district court’s
order denying his motion to compel the Government to file a
motion under Fed. R. Crim. P. 35(b). In his Rule 35(b) motion,
Orellana claimed that the prosecutor had promised a 50%
reduction based upon his substantial assistance and that the
Government failed to file the motion. The district court,
finding no record evidence of bad faith or unconstitutional
motive, denied the motion without a hearing.
On appeal, Orellana asserts that the district court
abused its discretion by failing to hold an evidentiary hearing
to determine whether the Government was obligated to file a Rule
35(b) motion or whether its refusal was based upon an
unconstitutional motive. We have reviewed the parties’ briefs
and the record on appeal and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. United States v. Orellana, No. 1:07-cr-00225-TSE-1 (E.D.
Va. Oct. 29, 2009). 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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