                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4866



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOHNNY MACK, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00226)


Submitted: February 15, 2007               Decided: February 20, 2007


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph M. Lee, Charlotte, North Carolina, for Appellant. Kimlani
Murray Ford, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Johnny   Mack,      Jr.,    pled   guilty    pursuant     to    a     plea

agreement to one count of possession with intent to distribute

cocaine base, one count of possession of a firearm during and in

relation to a drug trafficking crime, and one count of possession

of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1);

924(c)(1); 21 U.S.C. § 841 (2000).               Mack was sentenced by the

district court to a total of 137 months’ imprisonment.                   We affirm

the convictions and sentence.

            On appeal, counsel filed a brief pursuant to Anders v.

California,    386   U.S.       738    (1967),   asserting       there     were     no

meritorious grounds for appeal, but raising the issue of whether

the Government’s failure to request a downward departure under U.S.

Sentencing Guidelines Manual § 5K1.1 (2005) was improper. Mack was

informed of his right to file a pro se supplemental brief, but did

not do so, and the Government elected not to file a responsive

brief.

            The decision to file a § 5K1.1 motion is solely within

the Government’s discretion.            United States v. Butler, 272 F.3d

683, 686 (4th Cir. 2001).             Therefore, unless the Government has

obligated   itself   in     a   plea    agreement   to    file    a   substantial

assistance motion, its refusal to do so is not reviewable unless it

was based on an unconstitutional motive or not rationally related




                                       - 2 -
to a legitimate Government end.              Wade v. United States, 504 U.S.

181, 185-87 (1992).

             Mack’s plea agreement provided that if the Government,

“in   its    sole   discretion,”       determined    that   Mack    had   rendered

substantial assistance, it “may make a motion pursuant to U.S.S.G.

§    5K1.1   for    imposition    of    a    sentence   below    the   applicable

Sentencing Guidelines.”       Thus, because the Government retained its

discretion to file a § 5K1.1 motion, and Mack has failed to

establish that the Government’s refusal to file was either based on

an    unconstitutional      motive      or   not   rationally      related    to   a

legitimate Government end, the issue is not reviewable on appeal.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      Accordingly, we affirm Mack’s convictions and sentence.

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   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 in the

decisional process.



                                                                          AFFIRMED

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