UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4710 

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN ALBERT THOMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Lacy H. Thornburg,

District Judge. (CR-01-84)

Submitted: June 24, 2004 Decided: June 29, 2004

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant. Robert

James Conrad, Jr., United States Attorney, Brian Steven Cromwell,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*Pursuant to the plea agreement, Thompson waived the right to

appeal his sentence for the conspiracy conviction, but reserved the

right to raise issues involving prosecutorial misconduct and

ineffective assistance of counsel.

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PER CURIAM:

John Albert Thompson pled guilty without a plea agreement

to bank robbery and bank larceny, 18 U.S.C.A. § 2113(a), (b) (West

2000 & Supp. 2004), charges arising from his participation in a

robbery of the Central Carolinas Bank in Monroe, North Carolina, on

May 3, 2001. He was charged separately with conspiracy to commit

bank robbery, 18 U.S.C. § 371 (2000), and pled guilty to that

offense pursuant to a plea agreement. Thompson’s attorney has

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), questioning whether the government breached the plea

agreement by its failure to move for a downward departure for

substantial assistance, U.S. Sentencing Guidelines Manual § 5K1.1,

p.s. (2002), but asserting that, in his view, there are no

meritorious issues for appeal.* Thompson has been informed of his

right to file a pro se supplemental brief and has chosen not to

file a brief. We affirm the convictions and eighty-four-month

sentence.

Thompson’s plea agreement for the conspiracy count

provided that the government, “in its sole discretion,” would

determine whether Thompson’s assistance was substantial and, if his

assistance was deemed substantial, the government “may make a
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motion” for a downward departure based on his substantial

assistance. At the sentencing hearing, the government informed the

district court that it would not move for a substantial assistance

departure because Thompson’s assistance was still ongoing. Because

the agreement did not obligate the government to move for a

departure, the district court was without authority to compel a

motion unless Thompson demonstrated that the government’s failure

to file the motion resulted from an unconstitutional motive or was

not rationally related to a legitimate government end. United

States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001) (internal

quotation and citation omitted). Thompson did not attempt to make

this showing.

Pursuant to Anders, this court has reviewed the record

for reversible error and found none. We therefore affirm the

conviction and sentence. 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 this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on the client. We dispense with oral

argument because the facts and legal contentions are adequately
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 presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED