United States v. Mull , 45 F. App'x 284 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
MELVIN FRANKLIN MULL, a/k/a B. J.  No. 02-4216
Mull, a/k/a Melvin Franklin, a/k/a
Eugene Moore, a/k/a Brian Jason
Mull,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-99-60-V)
Submitted: August 29, 2002
Decided: September 9, 2002
Before WILLIAMS, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Patricia L. Riddick, PATRICIA L. RIDDICK, P.L.L.C., Mooresville,
North Carolina, for Appellant. Gretchen C.F. Shappert, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
2 UNITED STATES v. MULL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Melvin Franklin Mull appeals his conviction and 188-month sen-
tence for conspiracy to possess with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 (2000). Mull’s counsel
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), alleging there are no meritorious issues on appeal, but
raising two claims on Mull’s behalf. Although Mull was informed of
his right to file a supplemental brief, he has not done so. We affirm.
First, Mull contends the prosecutor engaged in misconduct by
refusing to move for a downward departure based on substantial assis-
tance. When, as in this case, the plea agreement accords the Govern-
ment "sole" discretion whether to file a substantial assistance motion,
the defendant generally may not complain about the failure to file
such a motion. See United States v. Wallace, 22 F.3d 84, 87 (4th Cir.
1994). The decision not to file a motion is reviewable if the defendant
makes a substantial threshold showing that the Government’s discre-
tionary decision was unconstitutional. Because Mull has never even
claimed, much less made the required showing, that the Govern-
ment’s decision was based on an unconstitutional motive or that it
was not rationally related to a legitimate governmental purpose, we
refuse to review his claim. See Wade v. United States, 504 U.S. 181,
185-86 (1992).
Second, Mull claims that his trial attorney was ineffective for fail-
ing to seek a downward departure. Because ineffective assistance of
counsel does not conclusively appear on the face of the record, we
will not address that claim on direct appeal. See United States v. King,
119 F.3d 290, 295 (4th Cir. 1997).
In accordance with Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
UNITED STATES v. MULL 3
Mull’s conviction and sentence. We require that counsel inform her
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 petition would be frivolous,
then counsel may move in this court for leave to withdraw from repre-
sentation. 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