                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4007


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

FREDDY HURTADO,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:03-cr-00014-RLV-CH-3)


Submitted:    October 14, 2008              Decided:   October 16, 2008


Before KING, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Freddy       Hurtado          appeals     from    his    mandatory        minimum

240-month sentence imposed after he received a downward variance

and after he pled guilty to conspiracy to possess with intent to

distribute     cocaine       and    heroin.             Hurtado’s     counsel     filed    an

Anders v. California, 386 U.S. 738 (1967) brief, Hurtado filed a

pro se supplemental brief, and the Government has declined to

file a brief.       We affirm.

             Hurtado argues that his plea was involuntary because

he believed he would receive one less drug felony in the 21

U.S.C. § 851 (2000) information and the Government would file a

U.S. Sentencing Guidelines Manual § 5K1.1 (2006) motion.                                    He

requests a sentence below the statutory minimum.                                He does not

request      that     his       guilty          plea     be     invalidated,          however.

Hurtado’s plea agreement does not contain a promise that the

Government would file a § 5K1.1 motion.                        The Fed. R. Crim. P. 11

hearing transcript clearly indicates that the plea was based on

leaving      off    one    of    Hurtado’s           drug     felonies     in    the    § 851

information but that the Government would not file a § 5K1.1

motion.      Hurtado agreed with the summary of the plea agreement

and   that     no    other      agreements           were     made    outside     the    plea

agreement.

             Hurtado’s          plea        agreement         did    not   obligate        the

Government     to    move    for       a    §   5K1.1    departure     even      if    Hurtado

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provided substantial assistance.            Hurtado does not allege, and

the record does not disclose, any evidence that the Government

refused to make the motion based on any unconstitutional motive.

See Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding

that     “federal   district    courts    have    authority    to   review   a

prosecutor’s refusal to file a substantial assistance motion and

to grant a remedy if they find that the refusal was based on an

unconstitutional motive.”).        Therefore, Hurtado’s claim fails.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm Hurtado’s conviction 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 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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