UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5159
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SARENA A. MOBLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00124-MOC-10)
Submitted: May 24, 2012 Decided: May 30, 2012
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morgantown, 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Unpublished opinions are not binding precedent in this circuit.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:
Sarena A. Mobley pled guilty pursuant to a written
plea agreement to conspiracy to commit mortgage fraud, in
violation of 18 U.S.C. § 371 (2006). The district court
sentenced Mobley to thirty-three months in prison. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious issues
for appeal but questioning, first, whether trial counsel were
ineffective in coercing Mobley to plead guilty, and second,
whether the Government committed prosecutorial misconduct in
failing to move for a downward departure based on substantial
assistance. Mobley filed a pro se supplemental brief asserting
that counsel rendered ineffective assistance in not preparing
her for sentencing and that the district court rushed the
sentencing proceedings. We affirm.
Claims of ineffective assistance of counsel are not
cognizable on direct appeal unless the record conclusively
establishes counsel’s “objectively unreasonable performance” and
resulting prejudice. United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). Instead, such claims are most appropriately
pursued in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.
2011). See United States v. Baptiste, 596 F.3d 214, 216 n.1
(4th Cir. 2010). Here, the record offers no clear indication of
deficient performance by counsel. Therefore, we decline to
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address in this appeal both the pro se and counseled claims of
ineffective counsel.
As to counsel’s claim of prosecutorial misconduct, the
filing of a motion for sentence reduction based on substantial
assistance is within the Government’s sole discretion. See Fed.
R. Crim. P. 35(b); U.S. Sentencing Guidelines Manual § 5K1.1.
However, a court may remedy the Government’s refusal to move for
such a reduction if (1) the Government has obligated itself to
move for a reduction under the terms of the plea agreement,
United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991), or
(2) the Government’s refusal to move for a reduction “was based
on an unconstitutional motive” or “was not rationally related to
any legitimate Government end.” Wade v. United States, 504 U.S.
181, 185-86 (1992); United States v. Butler, 272 F.3d 683, 686
(4th Cir. 2001) (internal quotation marks omitted). Here, the
plea agreement gave the Government full discretion to decide
whether Mobley’s assistance was substantial and warranted a
§ 5K1.1 motion. Moreover, counsel concedes that Mobley provided
no assistance and therefore no departure was warranted.
After thoroughly reviewing the record, we conclude
that Mobley’s remaining claim is without merit and squarely
contradicted by the record before us. In accordance with
Anders, we have examined the entire record for potentially
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meritorious issues and have found none. We affirm the judgment
of the district court.
This court requires that counsel inform Mobley, in
writing, of her right to petition the Supreme Court of the
United States for further review. If she requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move to withdraw.
Counsel’s motion must state that a copy thereof was served on
Mobley. 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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