                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-6913


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

NORMAN TYRONE DAIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:03-cr-00386-TLW-1)


Submitted:    January 15, 2009               Decided:   January 22, 2009


Before MOTZ and      SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Norman Tyrone Dais appeals the district court’s denial

of his motion to compel the government to file a Fed. R. Crim.

P. 35(b) motion for reduction of sentence.                       Dais’ attorney has

filed a brief in accordance with Anders v. California, 386 U.S.

738    (1967).          Although        counsel   states      that   there      are   no

meritorious      issues     for     appeal,       he    challenges      the    district

court’s denial of the motion to compel.                      Dais advances the same

challenge in a supplemental pro se brief.                    We affirm.

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

motion is a matter left to the government’s discretion.                         Fed. R.

Crim. P. 35(b); United States v. Dixon, 998 F.2d 228, 230 (4th

Cir.   1993).       However,        a    court    may   remedy    the     government’s

refusal   to     move    for    a   reduction      of    sentence    if:       (1)    the

government has obligated itself in the plea agreement to move

for a reduction; or (2) the government’s refusal to move for a

reduction   was    based       on   an    unconstitutional       motive.       Wade    v.

United States, 504 U.S. 181, 185-86 (1992).                          Here, the plea

agreement entered into between Dais and the government clearly

and unequivocally establishes that the decision whether to file

a Rule 35(b) motion rested within the sole discretion of the

government.         Moreover,            there    is    no     evidence       that    the

government’s refusal to file a Rule 35(b) motion was based on an



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unconstitutional motive.          Thus, we find no error by the district

court in denying Dais’ motion to compel.

           In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.    We therefore affirm the district court’s order denying

Dais’   motion    to   compel    the    government     to   file    a    Rule    35(b)

motion.    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 be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                 Counsel’s motion must

state that a copy thereof was served on the client.                      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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