                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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