United States v. Wakefield , 112 F. App'x 257 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7758
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EVERETTE LEON WAKEFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District
Judge. (CR-97-128)
Submitted: September 22, 2004 Decided: October 7, 2004
Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, L.L.C., Greenville, South
Carolina, for Appellant. Mark C. Moore, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Everette Leon Wakefield 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. Wakefield’s
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. The government elected not to file
a formal brief and, although this court notified Wakefield of his
right to file a supplemental pro se brief, he has not done so.
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). In this case, there is no evidence that the
government’s refusal to file a Rule 35(b) motion was based on an
unconstitutional motive. Thus, Wakefield would be entitled to
relief only if the government was obligated under the plea
agreement to move for a departure.
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Under his plea agreement, Wakefield agreed to cooperate
with the government. In exchange for his cooperation, if the
government deemed that he had provided substantial assistance in
the investigation or prosecution of other individuals, the
government agreed to move for a downward departure under the
sentencing guidelines and/or agreed to move for a reduction of
sentence pursuant to Fed. R. Crim. P. 35(b). However, the plea
agreement also required Wakefield to submit to polygraph
examinations if requested by the government and provided that his
failure to pass any polygraph tests to the government’s
satisfaction would render the government’s obligations under the
plea agreement null and void.
It is undisputed that Wakefield failed such a polygraph
examination. Therefore, the district court did not err by
concluding that the government was not obligated under the plea
agreement to file a Rule 35(b) motion. Because Wakefield’s breach
of the plea agreement relieved the government of any obligation to
file a Rule 35(b) motion, we find that the district court did not
err in denying Wakefield an evidentiary hearing on the statements
he made to the polygraph examiner after he failed the polygraph
test or by denying him an evidentiary hearing on whether he
provided substantial assistance to the government.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. We therefore affirm the district court’s order denying
Wakefield’s motion to compel the government to file a Rule 35(b)
motion. Wakefield’s motion to withdraw his request for an
extension of time to file a supplemental pro se brief is denied as
moot.
This court requires 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 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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