UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4064
MARIA GONZALES, a/k/a Maruja
Gonzalez,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T.S. Ellis, III, District Judge.
(CR-90-415)
Submitted: September 30, 1997
Decided: October 16, 1997
Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Frank Salvato, Alexandria, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, James L. Trump, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Maria Gonzales appeals from the district court's order
denying her motion to compel the Government to file a motion pursu-
ant to Fed. R. Crim. P. 35(b). Gonzales asserts that she provided sub-
stantial assistance and that the Government agreed to file such a
motion. Finding no reversible error, we affirm.
Gonzales was a leader in a major drug conspiracy, and a jury con-
victed her of several drug trafficking offenses. After trial but before
sentencing, Gonzales offered to cooperate with the Government in the
hope of receiving a reduced sentence. She entered into an agreement
that required her to cooperate fully with investigators. In exchange,
the Government agreed that it might, in its sole discretion, file a Rule
35(b) motion. Gonzales provided some information to investigators
and convinced her husband to cooperate, but the Government
informed the court that it believed Gonzales withheld information. In
addition, Gonzales denied significant aspects of her guilt at sentenc-
ing and during debriefings. As a result, the Government stated it did
not deem her information reliable or substantial and declined to file
a Rule 35(b) motion. Gonzales filed a motion to compel the Govern-
ment to file a Rule 35 motion, which the district court denied after
several hearings.
A district court may inquire into the Government's motives not to
file a Rule 35(b) motion in limited circumstances. See United States
v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994). The court may review
whether the prosecutor's decision was based upon an unconstitutional
motive. Id. Gonzales does not allege any such motive. The court may
also examine whether the Government breached the terms of the
cooperation agreement. Id. This theory is the basis of Gonzales's
motion.
We find that the plain language of the cooperation agreement gave
the Government total discretion over whether to file a Rule 35(b)
motion and in assessing whether she in fact provided substantial assis-
tance. Therefore, there was no breach of the written agreement. Gon-
zales alleges, however, that the Government modified the terms of the
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agreement when the prosecutor informed defense counsel that Gon-
zales provided substantial information and that she anticipated filing
a Rule 35(b) motion.* After hearing testimony on this issue, the dis-
trict court was not persuaded by Gonzales's evidence and found that
the Government did not modify the terms of the agreement or promise
to file a Rule 35(b) motion. We uphold such factual findings absent
clear error. See United States v. Martin, 25 F.3d 211, 217 (4th Cir.
1994).
We find that the record supports the district court's conclusions.
We therefore affirm the district court's order denying Gonzales's
motion. We dispense with oral argument because the facts and legal
contentions are adequately presented in the material before the court
and argument would not aid the decisional process.
AFFIRMED
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*We note that the prosecutor's alleged statements concerning the value
of Gonzales's information were made, if at all, prior to Gonzales's deni-
als of guilt at sentencing.
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