United States v. Tysinger , 115 F. App'x 620 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4295
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS TYSINGER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District Judge.
(CR-02-10135)
Submitted: October 6, 2004 Decided: November 15, 2004
Before LUTTIG, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles L. Bledsoe, BLEDSOE LAW OFFICE, P.C., Big Stone Gap,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
R. Lucas Hobbs, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thomas Tysinger was convicted pursuant to a written plea
agreement of conspiracy to possess with intent to distribute and
distribute in excess of 500 grams of powder cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846 (2000). He was sentenced to 120
months in prison. We affirm.
On appeal, Tysinger first argues that the district court
erred in denying his motion to dismiss the indictment. We review
the district court’s ruling de novo. See United States v. Brandon,
298 F.3d 307, 310 (4th Cir. 2002). After thoroughly reviewing the
record, we conclude that Tysinger was never promised, orally or
otherwise, that he would not be prosecuted in the Western District
of Virginia for his drug crimes if he cooperated with officials in
Florida. Moreover, Tysinger does not assert that he was given
statutory immunity by the Government. See 18 U.S.C.A. §§ 6001-6005(West 2000 & Supp. 2004). Thus, we hold that the district court
did not err in denying his motion to dismiss the indictment.
Next, Tysinger argues that the district court erred in
not granting his motion for a downward departure based on
substantial assistance and that the Government violated his rights
by not filing such a motion. We find that this claim is also
without merit. Tysinger does not contest that the written plea
agreement he entered prohibited his right to file a motion for a
downward departure. Moreover, we find that the plea agreement
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expressly gave the Government sole discretion over whether to file
such a motion and that Tysinger failed to show that the
Government’s decision not to file was based on an unconstitutional
motive (such as race) or was not rationally related to a legitimate
government end. United States v. Butler, 272 F.3d 683, 686-87 (4th
Cir. 2001). In addition, the record reflects that, after
authorities notified Tysinger that he needed to turn himself in
because of charges pending in the Western District of Virginia, he
fled for approximately three weeks, putting the Government through
the time and expense of tracking him down and arresting him in the
Midwest. Given these facts, we cannot conclude that there was no
rational basis for the Government’s decision not to file a downward
departure motion on Tysinger’s behalf.
For the forgoing reasons, we affirm the judgment of
conviction. 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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