                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4252


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEVON RAYMUS STURDIVANT,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District   of  North   Carolina,  at  Charlotte.     Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00194-RJC-1)


Submitted:   March 4, 2009                 Decided:   March 23, 2009


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Long, POYNER & SPRUILL, Raleigh, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 In     accordance       with        a     plea       agreement,      Devon     R.

Sturdivant pled guilty to conspiracy to attempt to possess with

intent      to        distribute      cocaine,        21       U.S.C.     § 846    (2006),     and

possession of a firearm in furtherance of a drug trafficking

crime, 18 U.S.C. § 924(c)(1) (2006).                             He was sentenced to 262

months      in    prison.        Sturdivant          now       appeals.     His    attorney    has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), questioning whether the United States should have moved

for    a    downward         departure     based          on     Sturdivant’s       substantial

assistance, but stating that there are no meritorious issues for

appeal.      Sturdivant has filed a pro se informal brief raising an

additional issue.             We affirm.

                 In imposing the 262-month sentence, the district court

considered the factors set forth at 18 U.S.C. § 3553(a) (2006).

With       regard       to     “the    history           and     characteristics        of     the

defendant,”            the     court     stated          that        it    would     take     into

consideration            Sturdivant’s       efforts             to      cooperate     with     the

Government.                  Balancing     this            cooperation,           however,     was

Sturdivant’s extensive criminal history.

                 In the Anders brief, counsel contends that the United

States      should       have    moved    for     a      downward         departure    based    on

Sturdivant’s substantial assistance to the United States.                                      See

USSG § 5K1.1.             The decision whether to file a § 5K1.1 motion

                                                 2
rests      solely    within      the     Government’s          discretion.          United

States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001).                                   Thus,

unless the Government has obligated itself in the plea agreement

to make such a motion, its refusal to make a § 5K1.1 motion is

not reviewable absent evidence of an unconstitutional motive.

Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272

F.3d at 686-87.

             Sturdivant’s         plea    agreement         did     not     obligate       the

United States to file a § 5K1.1 motion; rather, the agreement

clearly stated that the decision whether to file such a motion

lay   within      the    sole    discretion        of   the    United       States.     This

provision was summarized at Sturdivant’s arraignment.                              Further,

there is nothing in the record to suggest that the decision not

to file a § 5K1.1 motion had an unconstitutional motivation.

             In his informal brief, Sturdivant contends that Count

Two   of    the     indictment,     which         charged     him    with    the    firearm

offense,      was       unconstitutional          and   deprived          the   court      of

jurisdiction.           This    claim    is   without       merit.        Defects     in    an

indictment are not jurisdictional.                   United States v. Cotton, 535

U.S. 625, 631 (2002).             Further, Sturdivant’s valid guilty plea

waived this claimed non-jurisdictional defect.                            See Tollett v.

Henderson, 411 U.S. 258, 267 (1973); United States v. Willis,

992 F.2d 489, 490 (4th Cir. 1993).



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             We have examined the entire record in this case in

accordance      with   the    requirements      of   Anders,    and       we    find    no

meritorious issues for appeal.                Accordingly, we affirm.                This

court require 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, counsel may move in this court for leave to withdraw

from representation.          Counsel=s motion must state that a copy of

the motion was served on the client.                    The motions to dismiss

Count Two of the indictment and to correct jurisdictional defect

are denied.      We deny as moot the motions for fair and impartial

review and to expedite.             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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