                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-6572



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BLAKE KELLER,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-01-135)


Submitted:   May 31, 2006                  Decided:   June 20, 2006


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, John Eisinger,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Blake Keller appeals the district court’s denial of his

motion to reconsider its order granting the Government’s motion to

withdraw its conditional Fed. R. Crim. P. 35(b) motion.                    For the

following reasons, we affirm.

           It is well-settled that whether to file a 35(b) motion is

a matter left to the government’s discretion.                 See Fed. R. Crim. P.

35(b); see also United States v. Dixon, 998 F.2d 228, 230 (4th Cir.

1993).    However, a court may grant a downward departure in the

absence   of    a    government        motion    if:    (1)   the   government   has

obligated itself in the plea agreement to move for a departure or

(2) the government’s refusal to move for a departure was based on

an unconstitutional motive.              See Wade v. United States, 504 U.S.

181, 186 (1992).           We find neither circumstance present here and

thus conclude the Government retained absolute discretion as to

whether to pursue a Rule 35(b) motion.

           Accordingly,           we    affirm    the   district    court’s    order

granting the Government’s motion to withdraw its previously filed

conditional Rule 35(b) motion and the order denying Keller’s motion

for reconsideration for the reasons stated by the district court.

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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