                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-7586



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DENNIS RICHARD DASHER, a/k/a Timothy Scott
Jones,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.   Jerome B. Friedman,
District Judge. (4:03-cr-00140-JBF)


Submitted:   March 28, 2007                 Decided:   April 16, 2007


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Dennis Richard Dasher, Appellant Pro Se. Lisa Rae McKeel, OFFICE OF
THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Dennis   Richard   Dasher   seeks   to   appeal   the   district

court’s orders denying his motion for a downward departure under

Fed. R. Crim. P. 35(b) and denying his 28 U.S.C. § 2255 (2000)

motion.    For the reasons that follow, we affirm in part and dismiss

in part.

            The district court denied Dasher’s motion for a reduction

of his sentence under Rule 35(b) as 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). Here, the Government found Dasher’s

assistance insufficient to merit a motion and Dasher has failed to

show 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).    Thus, we affirm the district court’s order denying

Rule 35(b) relief.

            The second order that Dasher appeals denied his § 2255

motion, on the ground that it was filed beyond the one-year limit

for such actions.       The order also denied Dasher’s motion to

reconsider the denial of his Rule 35(b) motion.               To the extent

Dasher appeals from the denial of § 2255 relief, the order is not

appealable unless a circuit justice or judge issues a certificate

of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of

appealability will not issue absent “a substantial showing of the


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denial of a constitutional right.”          28 U.S.C. § 2253(c)(2) (2000).

A prisoner satisfies this standard by demonstrating that reasonable

jurists would find that any assessment of the constitutional claims

by   the   district   court   is    debatable    or    wrong    and    that   any

dispositive procedural ruling by the district court is likewise

debatable.    Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d

676, 683-84 (4th Cir. 2001).         We have independently reviewed the

record and conclude that Dasher has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss

this portion of the appeal. 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 IN PART;
                                                          DISMISSED IN PART




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