United States v. Keller , 185 F. App'x 290 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6572
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BLAKE KELLER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-01-135)
Submitted: May 31, 2006 Decided: June 20, 2006
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Geremy C. Kamens,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, John Eisinger,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Blake Keller appeals the district court’s denial of his
motion to reconsider its order granting the Government’s motion to
withdraw its conditional Fed. R. Crim. P. 35(b) motion. For the
following reasons, we affirm.
It is well-settled that whether to file a 35(b) motion is
a matter left to the government’s discretion. See Fed. R. Crim. P.
35(b); see also United States v. Dixon, 998 F.2d 228, 230 (4th Cir.
1993). However, a court may grant a downward departure in the
absence of a government motion if: (1) the government has
obligated itself in the plea agreement to move for a departure or
(2) the government’s refusal to move for a departure was based on
an unconstitutional motive. See Wade v. United States, 504 U.S.
181, 186 (1992). We find neither circumstance present here and
thus conclude the Government retained absolute discretion as to
whether to pursue a Rule 35(b) motion.
Accordingly, we affirm the district court’s order
granting the Government’s motion to withdraw its previously filed
conditional Rule 35(b) motion and the order denying Keller’s motion
for reconsideration for the reasons stated by the district court.
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
- 2 -