United States v. Mathis ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60221
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELVIN MATHIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:97-CR-83-2-S
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September 13, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Melvin Mathis pleaded guilty to aiding and abetting
possession with intent to distribute crack cocaine. Mathis
asserts that the Government breached the plea agreement by not
moving for a downward departure based on his cooperation.
Section 5K1.1 gives the Government the discretion to move for a
downward departure if the defendant provides substantial
assistance, but it does not require the Government to make such a
motion. United States v. Price, 95 F.3d 364, 368 (5th Cir.
1996). Mathis has not shown that the refusal to make the § 5K1.1
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-60221
-2-
motion was motivated by an unconstitutional factor or that the
Government was obligated under the plea agreement to move for a
downward departure in exchange for the defendant’s substantial
assistance. Id.; see United States v. Solis, 169 F.3d 224, 226-
27 (5th Cir. 1999).
Mathis argues that the district court relied at sentencing
on erroneous information that he, Mathis, had threatened to kill
a potential witness and that his counsel was ineffective for
failing to challenge this information. As the district court
specifically stated that it was not considering the allegation in
passing sentence, Mathis can show no error with respect to these
claims.
Mathis cannot show that counsel was ineffective for failing
to make the Government prove that he was in possession of crack
cocaine because Mathis admitted possession of crack cocaine. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Mathis’s claim that the Northern District of Mississippi is
not part of the United States is frivolous. His claim that the
district court should have considered some unnamed alternative in
sentencing him is not supported by any facts or by any pertinent
legal authority. This issue is deemed waived. Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993).
Mathis’s motion to dispense with the requirement to file
record excerpts is GRANTED. All outstanding motions are DENIED.
AFFIRMED.