                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-5159


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

SARENA A. MOBLEY,

                       Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:10-cr-00124-MOC-10)


Submitted:   May 24, 2012                        Decided:   May 30, 2012


Before MOTZ and     DAVIS,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Carol Ann Bauer, Morgantown, 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Unpublished opinions are not binding precedent in this circuit.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:

              Sarena A. Mobley pled guilty pursuant to a written

plea    agreement        to     conspiracy       to      commit   mortgage     fraud,    in

violation      of       18    U.S.C.    § 371       (2006).       The    district    court

sentenced Mobley to thirty-three months in prison.                             On appeal,

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious issues

for appeal but questioning, first, whether trial counsel were

ineffective        in    coercing       Mobley      to    plead   guilty,     and   second,

whether      the    Government         committed         prosecutorial     misconduct    in

failing to move for a downward departure based on substantial

assistance.         Mobley filed a pro se supplemental brief asserting

that counsel rendered ineffective assistance in not preparing

her    for   sentencing         and     that     the      district   court     rushed    the

sentencing proceedings.               We affirm.

              Claims of ineffective assistance of counsel are not

cognizable         on    direct    appeal      unless       the   record      conclusively

establishes counsel’s “objectively unreasonable performance” and

resulting prejudice.              United States v. Benton, 523 F.3d 424, 435

(4th Cir. 2008).              Instead, such claims are most appropriately

pursued in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp.

2011).       See United States v. Baptiste, 596 F.3d 214, 216 n.1

(4th Cir. 2010).             Here, the record offers no clear indication of

deficient     performance          by    counsel.          Therefore,    we    decline    to

                                                2
address in this appeal both the pro se and counseled claims of

ineffective counsel.

           As to counsel’s claim of prosecutorial misconduct, the

filing of a motion for sentence reduction based on substantial

assistance is within the Government’s sole discretion.                          See Fed.

R. Crim. P. 35(b); U.S. Sentencing Guidelines Manual § 5K1.1.

However, a court may remedy the Government’s refusal to move for

such a reduction if (1) the Government has obligated itself to

move for a reduction under the terms of the plea agreement,

United States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991), or

(2) the Government’s refusal to move for a reduction “was based

on an unconstitutional motive” or “was not rationally related to

any legitimate Government end.”               Wade v. United States, 504 U.S.

181, 185-86 (1992); United States v. Butler, 272 F.3d 683, 686

(4th Cir. 2001) (internal quotation marks omitted).                            Here, the

plea agreement gave the Government full discretion to decide

whether   Mobley’s      assistance     was         substantial     and   warranted     a

§ 5K1.1 motion.        Moreover, counsel concedes that Mobley provided

no assistance and therefore no departure was warranted.

           After       thoroughly     reviewing        the    record,    we     conclude

that   Mobley’s    remaining    claim         is    without    merit     and    squarely

contradicted      by   the   record    before         us.     In   accordance       with

Anders,   we   have     examined    the       entire    record     for    potentially



                                          3
meritorious issues and have found none.                         We affirm the judgment

of the district court.

               This    court       requires    that     counsel     inform        Mobley,    in

writing,       of    her    right    to    petition     the      Supreme     Court    of    the

United    States       for    further      review.         If    she    requests      that   a

petition be filed, but counsel believes that such a petition

would     be        frivolous,      then      counsel      may     move      to    withdraw.

Counsel’s motion must state that a copy thereof was served on

Mobley.        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




                                               4
