                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-7758



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,
          versus


EVERETTE LEON WAKEFIELD,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Margaret B. Seymour, District
Judge. (CR-97-128)


Submitted:   September 22, 2004           Decided:   October 7, 2004


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. Mark C. Moore, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Everette Leon Wakefield appeals the district court’s

denial of his motion to compel the government to file a Fed. R.

Crim. P. 35(b) motion for reduction of sentence.              Wakefield’s

attorney has filed a brief in accordance with Anders v. California,

386 U.S. 738 (1967).       Although counsel states that there are no

meritorious issues for appeal, he challenges the district court’s

denial of the motion to compel.     The government elected not to file

a formal brief and, although this court notified Wakefield of his

right to file a supplemental pro se brief, he has not done so.

           It is well-settled that whether to file a Rule 35(b)

motion is a matter left to the government’s discretion.            Fed. R.

Crim. P. 35(b); United States v. Dixon, 998 F.2d 228, 230 (4th Cir.

1993).   However, a court may remedy the government’s refusal to

move for a reduction of sentence if:            (1) the government has

obligated itself in the plea agreement to move for a reduction; or

(2) the government’s refusal to move for a reduction was based on

an unconstitutional motive.      Wade v. United States, 504 U.S. 181,

185-86 (1992).       In this case, there is no evidence that the

government’s refusal to file a Rule 35(b) motion was based on an

unconstitutional motive.        Thus, Wakefield would be entitled to

relief   only   if   the   government   was   obligated   under   the   plea

agreement to move for a departure.




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            Under his plea agreement, Wakefield agreed to cooperate

with the government.              In exchange for his cooperation, if the

government deemed that he had provided substantial assistance in

the   investigation         or    prosecution     of    other       individuals,       the

government agreed to move for a downward departure under the

sentencing guidelines and/or agreed to move for a reduction of

sentence pursuant to Fed. R. Crim. P. 35(b).                        However, the plea

agreement        also     required    Wakefield        to    submit       to   polygraph

examinations if requested by the government and provided that his

failure     to     pass     any    polygraph    tests        to     the    government’s

satisfaction would render the government’s obligations under the

plea agreement null and void.

            It is undisputed that Wakefield failed such a polygraph

examination.            Therefore,   the   district         court   did    not   err   by

concluding that the government was not obligated under the plea

agreement to file a Rule 35(b) motion.                 Because Wakefield’s breach

of the plea agreement relieved the government of any obligation to

file a Rule 35(b) motion, we find that the district court did not

err in denying Wakefield an evidentiary hearing on the statements

he made to the polygraph examiner after he failed the polygraph

test or by denying him an evidentiary hearing on whether he

provided substantial assistance to the government.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for


                                        - 3 -
appeal.   We therefore affirm the district court’s order denying

Wakefield’s motion to compel the government to file a Rule 35(b)

motion.    Wakefield’s   motion    to   withdraw    his   request    for   an

extension of time to file a supplemental pro se brief is denied as

moot.

          This court requires that counsel inform her 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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