UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-7066

RICHARD DARIN PIERCE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Richard C. Erwin, Senior District Judge.
(CR-92-285-G)

Submitted: June 30, 1997

Decided: August 19, 1997

Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Richard Darin Pierce, Appellant Pro Se. Lisa Blue Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Richard Pierce was convicted of possession with intent to distribute
over five hundred grams of cocaine in violation of 21 U.S.C. § 841
(1994). Pierce brought a Fed. R. Crim. P. 35(b) motion in the district
court seeking to enforce an agreement he alleges that he made with
the Government for his cooperation in an investigation.

The facts regarding Pierce's claim are taken from his motion. The
Government was not directed to respond to the motion. After Pierce's
conviction, but during the pendency of his appeal, the Drug Enforce-
ment Administration (DEA) approached Pierce's trial counsel and
sought Pierce's assistance on an unrelated matter. The U.S. Attor-
ney's Office for the Eastern District of Pennsylvania interceded and
reiterated the DEA's request for assistance in the unrelated investiga-
tion.

An oral agreement was reached between the Eastern District of
Pennsylvania and the U.S. Attorney's Office in Greensboro, North
Carolina, the office that prosecuted Pierce. The alleged agreement
was that if Pierce provided substantial assistance in the investigation,
North Carolina Assistant U.S. Attorney (AUSA) Boggs would bring
Pierce's substantial assistance to the attention of the district court in
a Rule 35(b) motion. Pierce subsequently agreed to participate in the
investigation. Allison Burroughs, a Pennsylvania AUSA involved in
the investigation, wrote a letter to AUSA Boggs acknowledging that
Pierce provided information that led to the capture of a fugitive and
that Pierce provided truthful and accurate information. AUSA Boggs
did not file a Rule 35(b) motion in compliance with the oral agree-
ment.

Pierce did not learn of AUSA Burroughs' letter to AUSA Boggs
until March 21, 1996. On May 16, 1996, Pierce filed a motion entitled
"Motion for reduction of sentence, nunc pro tunc, pursuant to Fed. R.
Crim Pro. [sic] 35." The motion for reduction of sentence seeks to
enforce the agreement. The district court denied the motion and dis-
missed the action without prejudice because Pierce made the motion

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instead of the Government, as is required by Rule 35. Pierce timely
noted an appeal.

A district court has authority to review a prosecutor's refusal to file
a substantial assistance motion and grant a remedy when the refusal
was based upon an unconstitutional motive. See Wade v. United
States, 504 U.S. 181, 184-85 (1992). Even when there is no written
plea agreement incorporating a Rule 35(b) agreement, the district
court may review the decision not to move for downward departure.
See id. at 185; United States v. Maddox, 48 F.3d 791, 796 (4th Cir.
1995).

While Pierce has a right to prove that an agreement existed and that
the Government breached it, he cannot bring the motion under Rule
35(b). Rule 35(b) states that the motion must be made by the Govern-
ment. See Fed. R. Crim. P. 35(b). A defendant may not invoke Rule
35(b) to move the court to reduce his sentence. The district court does
not have the authority to reduce a defendant's sentence under the rule
when it is made by the defendant. See United States v. Blackwell, 81
F.3d 945, 948 (10th Cir. 1996).*

An alternative method of collateral attack on sentences imposed as
a result of a conviction in federal court is provided by 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1997). The Supreme Court has recog-
nized that § 2255 can be utilized as a method to set aside a sentence
so that a prisoner may be properly resentenced. See Andrews v.
United States, 373 U.S. 334, 339-40 (1963). The Supreme Court has
recognized that § 2255 relief may be claimed on four grounds: (1) the
sentence was imposed in violation of the Constitution or laws of the
United States, (2) the court was without jurisdiction to impose the
sentence, (3) the sentence was in excess of the maximum authorized
by law, and (4) the sentence is otherwise subject to collateral attack.
See Hill v. United States, 368 U.S. 424, 426-27 (1962). We believe
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*In his brief, Pierce cites United States v. Pinter, 971 F.2d 554 (10th
Cir. 1992), as authority that a district court may entertain a Rule 35(b)
motion brought by the defendant. Pinter moved for a reduction of sen-
tence under the former Rule 35 and the motion was applicable only to
offenses committed prior to November 1, 1987. Pinter, 971 F.2d at 556
n.3. Pinter, therefore, is not persuasive.

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that if Pierce's allegations are true, his sentence may be subject to col-
lateral attack.

We hold that Pierce's motion should have been construed as a
§ 2255 motion by the district court. We remand the case to the district
court to consider as a § 2255 motion and to direct the Government to
respond to Pierce's claims. We deny Pierce's motion to expedite
briefing. 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.

VACATED AND REMANDED

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