United States v. Tony Lopez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7476
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY ERVIN LOPEZ, a/k/a Pullulo, a/k/a Peludo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cr-00137-GBL-1)
Submitted: November 21, 2013 Decided: November 26, 2013
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tony Ervin Lopez, Appellant Pro Se. Richard Daniel Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Ervin Lopez appeals the district court’s order
denying his motion to compel the Government to file a motion for
sentence reduction under Fed. R. Crim. P. 35(b) and his motion
for sentence reduction under that rule. We affirm.
On appeal, we confine our review to the issues raised
in the Appellant’s brief. See 4th Cir. R. 34(b). Because
Lopez’s informal brief does not challenge the district court’s
denial of his motion for sentence reduction, he has forfeited
appellate review of that portion of the district court’s order.
With respect to the district court’s denial of the
motion to compel, 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). A court may remedy the Government’s
refusal to move for a sentence reduction under Rule 35(b) if:
(1) the Government has obligated itself in the plea agreement to
move for the reduction; or (2) the Government’s refusal to move
for the reduction was based on an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 185-86 (1992).
After review of the record, we conclude that neither
circumstance is present here. The plea agreement between Lopez
and the Government clearly establishes that the decision whether
to file a Rule 35(b) motion rested with the Government’s
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discretion, and Lopez did not claim in the motion to compel that
the Government’s refusal to file a Rule 35(b) motion was based
on an unconstitutional motive.
Accordingly, we affirm the district court’s order
denying Lopez’s motions. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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