United States v. McCutcheon , 89 F. App'x 821 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GLORIA A. MCCUTCHEON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (CR-97-866)
Submitted: December 17, 2003 Decided: February 20, 2004
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gloria A. McCutcheon, Appellant Pro Se. William Earl Day, II,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gloria A. McCutcheon appeals from the district court’s
denial of her motion for reconsideration. McCutcheon requested the
court to compel the Government to file a motion under Federal Rule
of Criminal Procedure 35 to reduce her sentence for her asserted
substantial assistance in the conviction of another person. The
district court found no reason to do so and denied McCutcheon’s
motion.
Federal courts may review a prosecutor’s refusal to file
a Rule 35 motion and grant a remedy when the refusal is based on an
unconstitutional motive or if such refusal is not related to a
legitimate government end. Wade v. United States, 504 U.S. 181,
185-86 (1992). Here, McCutcheon has not asserted that the
Government’s refusal to file a motion on her behalf is related to
either of the aforementioned impermissible reasons. Consequently,
the district court’s refusal to compel the Government to file a
Rule 35 motion is affirmed.
To the extent that McCutcheon asks this court to construe
a letter she wrote to the district court over two years ago as a
motion under 28 U.S.C. § 2255, we decline to do so. Among other
matters, McCutcheon’s letter complained that the Government had not
filed a Rule 35 motion on her behalf. The letter gave no
indication that McCutcheon sought to collaterally attack her
conviction or sentence. Therefore, this court refuses to construe
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her earlier correspondence as a § 2255 motion and denies
McCutcheon’s request for a certificate of appealability as moot.
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 in the decisional process.
AFFIRMED
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