                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4802


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TIMOTHY TOWAN KELLY, a/k/a Big Hurt, a/k/a Hurt,

                  Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Columbia.    Joseph F. Anderson, Jr., Chief
District Judge. (3:07-cr-00155-JFA-8)


Submitted:    July 30, 2009                 Decided:   August 11, 2009


Before MICHAEL, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James A. Brown, Jr., LAW OFFICE OF JAMES BROWN, JR., PA,
Beaufort, South Carolina, for Appellant.  Stacey Denise Haynes,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Timothy Towan Kelly pled

guilty to conspiracy to possess with intent to distribute and to

distribute fifty grams or more of cocaine base (“crack”), five

kilograms or more of cocaine, and a quantity of marijuana, in

violation       of     21    U.S.C.    § 846       (2006).         The    district      court

sentenced       Kelly       to   240   months’       imprisonment.            Kelly   timely

appealed.

            Kelly’s attorney has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), questioning whether

the   Government            breached   the     plea        agreement     by    failing     to

withdraw    the       21     U.S.C.    § 851       (2006)    information        seeking    an

enhanced    minimum          penalty   based       on   Kelly’s     prior      felony    drug

conviction, but concluding that there are no meritorious grounds

for appeal.           Kelly was advised of his right to file a pro se

supplemental          brief,     but   he    did     not    file    one.       Finding     no

meritorious grounds for appeal, we affirm.

            Kelly was charged with a drug trafficking conspiracy

and other offenses.               The Government also filed an information

pursuant to 21 U.S.C. § 851, seeking an enhanced minimum penalty

based on Kelly’s prior felony drug conviction.                           This enhancement

increased       the    statutory       mandatory        minimum     sentence      from    ten

years to twenty years.                 Pursuant to a plea agreement, Kelly

agreed     to    plead        guilty    to     the      conspiracy       count    and     the

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Government agreed to seek dismissal of the remaining counts.

The plea agreement also provided that if Kelly cooperated with

the Government and his cooperation was “deemed by the Government

as    providing      substantial      assistance         in   the      investigation        or

prosecution of another person who has committed an offense,” the

Government would withdraw the § 851 enhancement.                            The Government

did not withdraw the § 851 information and Kelly was sentenced

to    the    enhanced     statutory     minimum     sentence          of    240    months   in

prison.

               Kelly contends that the Government breached the plea

agreement by failing to withdraw the § 851 enhancement.                              Because

he did not raise this issue in the district court, we review the

claim for plain error.               Puckett v. United States, 129 S. Ct.

1423,       1428    (2009).      A    plea   agreement           is    breached      when    a

Government         promise    that    induces     the      plea       goes    unfulfilled.

Santobello v. New York, 404 U.S. 257, 262 (1971).                                  Here, the

Government did not fail to fulfill any promises.                              The decision

as to whether Kelly provided substantial assistance was within

the    Government’s       discretion      and,      in    any     event,      the    parties

acknowledged         at      sentencing      that        Kelly        did    not     provide

substantial assistance.              Accordingly, Kelly is not entitled to

relief on this claim.

               In accordance with Anders, we have reviewed the record

for    any    meritorious      issues     for    appeal       and     have    found    none.

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Thus,    we    affirm   the    district       court’s   judgment.           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 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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