                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4000



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TIMOTHY ALEXANDER RUSH,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (CR-99-86)


Submitted: May 13, 2004                        Decided:   May 19, 2004


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Helen Eckert Phillips, Stanardsville, Virginia, for Appellant.
Morgan Eugene Scott, Acting United States Attorney, Roanoke,
Virginia, Jean Barrett Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Timothy Alexander Rush pleaded guilty to conspiracy to

distribute more than fifty grams of cocaine base, in violation of

21 U.S.C. § 846 (2000).       The Government filed an information

pursuant to 21 U.S.C. § 851 (2000). Rush was sentenced to 240

months incarceration, ten years supervised release, and a $100

special   assessment.   His   attorney   has    filed   an   appeal   under

Anders v. California, 386 U.S. 738 (1967), raising five issues but

asserting there are no meritorious claims on appeal.         Rush filed a

supplemental informal brief in which he joins three of these

issues.

           First, Rush alleges the sentencing parameters in the

written plea agreement were changed without his knowledge.             Rush

was informed of the mandatory minimum sentence of twenty years

during the Fed. R. Crim. P. 11 hearing, and Rush indicated his

understanding of the minimum term.        We find Rush was properly

informed of the sentencing parameters.

           Next, Rush asserts he did not receive copies of the

discovery material but instead received written summaries from

counsel, and the Government’s prosecution of him was malicious

because the Government lacked probable cause.           Rush and his co-

defendants were video-recorded making numerous sales to an uncover

agent who testified at the Rule 11 hearing detailing the purchases

made from Rush and his co-defendants.          The Government possessed


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probable cause to charge Rush with conspiracy to distribute cocaine

base.    Rush’s acknowledgment of his guilt at the Rule 11 hearing

demonstrates   Rush   acknowledged     sufficient    evidence    existed   to

convict him of the conspiracy despite not having all the discovery

materials in his possession.

           Rush   alleges   his   trial    counsel   provided    ineffective

assistance.    We review this claim to assess whether the record

conclusively establishes Rush’s trial counsel was ineffective.             We

hold the record does not conclusively establish Rush’s trial

counsel was ineffective.      We deny relief on this claim without

prejudice to Rush’s ability to allege ineffective assistance on

collateral review.    United States v. Richardson, 195 F.3d 192, 198

(4th Cir. 1999); United States v. King, 119 F.3d 290, 295 (4th Cir.

1997).

           Finally, Rush asserts the Government failed to move for

a   downward   departure    pursuant      to   United   States   Sentencing

Guidelines Manual § 5K (2002) despite the assistance he provided.

When, as in this case, the plea agreement accords the Government

sole discretion whether to file a substantial assistance motion,

the defendant generally may not complain about the failure to file

such a motion.    See United States v. Wallace, 22 F.3d 84, 87 (4th

Cir. 1994).    Rush identifies no exception to this rule that would

apply to his case.    Therefore, we find no error.




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          Accordingly, we affirm Rush’s conviction and sentence.

We deny counsel’s motion to withdraw.   In accordance with Anders,

we have reviewed 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 further 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.   Counsel’s motion must

state that a copy thereof was served on the client.    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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