                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2490
                                   ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the District
Gerardo Rodriguez, also known as     * of Minnesota.
“Gerry,”                             *
                                     *        [UNPUBLISHED]
           Appellant.                *
                                ___________

                             Submitted: March 19, 2004

                                 Filed: March 31, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

       Gerardo Rodriguez pleaded guilty to conspiring to distribute and possess with
intent to distribute more than 1,000 kilograms of a substance containing marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court1
sentenced him to 120 months imprisonment and 5 years supervised release. On
appeal, his counsel has moved to withdraw and filed a brief under Anders v.


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
California, 386 U.S. 738 (1967), arguing that the government should have filed a
downward-departure motion based on Mr. Rodriguez’s substantial assistance.

        We reject this argument as there is no indication that the government’s refusal
to file such a motion was based on an unconstitutional motive or was in bad faith.
See Wade v. United States, 504 U.S. 181, 185-86 (1992) (defendant must show
government’s refusal to move for departure was not rationally related to any
legitimate government purpose); United States v. Hardy, 325 F.3d 994, 995-96
(8th Cir. 2003) (when government expressly reserves discretion, this court performs
only limited review of decision not to file substantial-assistance motion).

       Following our independent review of the record, see Penson v Ohio, 488 U.S.
75 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion
to withdraw, and we affirm.
                       ______________________________




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