                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3529
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa
Michael Alan Swafford,                   *
                                         *      [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: May 3, 1999

                                Filed: June 7, 1999
                                    ___________

Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.

       Pursuant to a written plea agreement, Michael Alan Swafford pleaded guilty to
conspiring to distribute and to possess with intent to distribute 100 grams or more of
actual methamphetamine and 1,000 grams or more of a mixture or substance containing
a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846. The district
court1 sentenced him to 120 months imprisonment and five years supervised release.
On appeal, counsel moved to withdraw pursuant to Anders v. California, 386 U.S. 738

      1
       The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
(1967), and although we granted Swafford permission to file a pro se supplemental
brief, he has not done so. For the reasons stated below, we affirm.

      The sole issue raised in the Anders brief is whether the government breached the
plea agreement by refusing to move for downward departure under 18 U.S.C.
§ 3553(e). This argument fails because the plea agreement unambiguously vested sole
discretion in the government whether to make a § 3553(e) motion. See United States
v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994) (finding government did not breach plea
agreement to move for downward departure because government did not unequivocally
or unconditionally commit itself to file motion); United States v. Romsey, 975 F.2d
556, 558 (8th Cir. 1992) (carefully-worded plea agreement preserved government’s
discretion not to file substantial-assistance motion). Swafford does not argue that the
government's refusal was based on an unconstitutional motive or was irrational.

      Upon review of the record in accordance with Penson v. Ohio, 488 U.S. 75, 80
(1988), we have found no other nonfrivolous issues. Accordingly, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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