United States v. Harrell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-7248
GREGORY VINES HARRELL, a/k/a
Steel,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-99-27-HO)
Submitted: July 11, 2003
Decided: August 13, 2003
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William T. Peregoy, Wilmington, North Carolina, for Appellant.
Anne Margaret Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HARRELL
OPINION
PER CURIAM:
Gregory Vines Harrell 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. Harrell’s
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Although counsel states that there are no meritorious
issues for appeal, he challenges the district court’s failure to hold an
evidentiary hearing on the Government’s withdrawal motion. The
Government elected not to file a formal brief, and Harrell filed a sup-
plemental brief. In accordance with Anders, we have considered the
briefs and examined the entire record for meritorious issues.
On appeal, Harrell’s counsel challenges the district court’s failure
to allow Harrell an opportunity to be heard in response to the Govern-
ment’s motion to withdraw its 35(b) motion. For the following rea-
sons, we disagree.
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,
the United States Supreme Court has held that 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 that Harrell can demonstrate nei-
ther, thus requiring a finding that the Government retained absolute
discretion whether to pursue a Rule 35(b) motion.
The plea agreement states in relevant part as follows: "[the Govern-
ment] will make known to the Court at sentencing the full extent of
Defendant’s cooperation, but the Government is not promising to
move for departure pursuant to . . . Fed. R. Crim. P. 35." A plain read-
ing of the plea agreement thus reveals not only that the Government
did not obligate itself to pursue a Rule 35(b) motion, it affirmatively
retained absolute discretion over the matter.
UNITED STATES v. HARRELL 3
Moreover, there is no evidence that the Government refused to pur-
sue the Rule 35(b) motion based on an unconstitutional motive. The
Rule 35(b) motion states that Harrell was expected to be a witness in
subsequent months, and that because he was still cooperating and fur-
ther assistance and testimony might be required, the Government
requested that the motion be "held in abeyance until completion of
that assistance." The motion is also explicit that it was "subject to
being withdrawn should the defendant not complete his cooperation."
Consistent with the Rule 35(b) motion, the Government’s withdrawal
motion explained that it had been unable to secure prosecutions of
individuals about whom Harrell had provided information.
Accordingly, pursuant to both the plea agreement and the Rule
35(b) motion, the Government’s obligation to seek a reduction of
Harrell’s sentence was contingent upon what it deemed to be Harrell’s
substantial assistance, and the Government explicitly retained the
right to withdraw the motion if Harrell failed to fulfill his continuing
obligation to provide that substantial assistance. Thus, we find that the
district court did not err by denying Harrell’s motion to reconsider its
order granting the Government’s withdrawal motion.
Moreover, whether to conduct an evidentiary hearing on a Rule
35(b) motion is a matter left to the sound discretion of the district
court. See United States v. Pridgen, 64 F.3d 147, 150 (4th Cir. 1995).
In its order denying Harrell’s motion for reconsideration, the district
court explicitly stated that it had enough information to make a deci-
sion without the need for a hearing. Thus, we find that the district
court’s failure to grant such a hearing did not amount to an abuse of
discretion. In any event, Harrell has had the opportunity to be heard,
once by the district court in his motion for reconsideration, and now
by this court.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm the district court’s order denying Harrell’s motion for
reconsideration. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation.
4 UNITED STATES v. HARRELL
Counsel’s motion must state that a copy thereof was served on the cli-
ent.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED