UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                          No. 99-4787
HUGO AGUAYO, a/k/a Hugo Ochoa
Aguyo,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-99-105)

Submitted: April 20, 2000

Decided: May 3, 2000

Before MURNAGHAN, WILKINS, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Sandra J. Hairston, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Hugo Ochoa Aguayo pled guilty to conspiracy to distribute in
excess of 500 grams of cocaine, 21 U.S.C.A. §§ 846, 841(b)(1)(B)
(West 1999). Aguayo appeals from the district court judgment sen-
tencing him to 57 months imprisonment. His attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal.

Aguayo has filed a document entitled "Defendant's Memorandum
in Request for Downward Departure" which we have construed as a
pro se supplemental brief. Aguayo claims that the United States
should have made a motion for a downward departure based on sub-
stantial assistance. The decision to file a downward departure motion
is within the sole discretion of the government and is not reviewable
unless the government based its decision upon an unconstitutional
factor, such as race. See Wade v. United States , 504 U.S. 181, 185-87
(1992). There is no evidence that the Government's failure to move
for a departure was based on an unconstitutional motive.

In accordance with Rule 11, Fed. R. Crim. P., the district court
properly conducted a hearing and found that Aguayo's plea was
knowing and voluntary, that he had full knowledge of the charges
against him, and that he agreed with the written factual basis to sup-
port his guilty plea. A Spanish-speaking interpreter was present and
translated the proceedings. Aguayo was sentenced to the lowest end
of the guideline range.

In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Aguayo'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

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be filed, but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. See 4th Cir. R. 46(d). Counsel's motion must state that a
copy thereof was served on the client. See id. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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