UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5872

CHARLES EDWARD MOSS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-95-338)

Submitted: September 20, 1996

Decided: October 7, 1996

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles Benjamin Patterson, ARRINGTON, HOLLOWELL & PAT-
TERSON, L.L.P., Greenville, South Carolina, for Appellant. Harold
Watson Gowdy, III, OFFICE OF THE UNITED STATES ATTOR-
NEY, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Charles Edward Moss, Jr., pled guilty to conspiracy to possess with
the intent to distribute crack cocaine, in violation of 21 U.S.C. § 846
(1994). The district court sentenced Moss to serve 210 months impris-
onment to be followed by five years supervised release. He appeals
his conviction and sentence. Moss's attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
two issues but indicating that, in his view, there are no meritorious
issues for appeal. Moss was informed of his right to file a pro se sup-
plemental brief; he has failed to file anything on his behalf.

Moss's counsel raises the questions of whether the district court
erred in not ordering a downward departure from the United States
Sentencing Guidelines and whether he received ineffective assistance
of counsel during his guilty plea and sentencing hearings. Finding no
reversible error, we affirm Moss's conviction and sentence.

In Moss's plea agreement, based on the cooperation provided, the
Government explicitly retained the discretion to move for a down-
 4314 45 2 ward departure1 or a sentence redu
                    ction2 for substantial assistance.

After evaluating Moss's information and finding it totally incredu-
lous, the Government declined to move for a downward departure
from the sentencing guidelines or for a reduced sentence. This deci-
sion was rationally related to a legitimate government interest and
was not based on an unconstitutional motive such as race or religion;
therefore, Moss is not entitled to any relief on this claim. See Wade
v. United States, 504 U.S. 181, 185-86 (1992).

To support his claims of ineffective assistance of counsel, Moss
asserted that he was "framed" by his attorney, that he was not ade-
quately represented by counsel, and that he did not receive full credit
for pleading guilty. These claims are directly belied by the record.
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual, § 5K1.1
(Nov. 1994).

2 Fed. R. Crim. P. 35(b).

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First, there is no evidentiary support for Moss's claim that he was
framed by his attorney. Second, the record revealed competent and
thorough representation during the plea and sentencing hearings.
Third, because of his guilty plea, Moss did receive a two-point
acceptance-of-responsibility reduction during the calculation of his
total offense level for sentencing purposes. As a final note, Moss has
failed to allege that but for counsel's unprofessional errors, he would
not have pled guilty and would have insisted upon going to trial. See
Hill v. Lockhart, 474 U.S. 52, 59 (1985). Therefore, Moss's claims of
ineffective assistance of counsel must also fail.

In accordance with the requirements of Anders , we have examined
the entire record in this case and find no other meritorious issues for
appeal. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther 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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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