UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4252

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

DEVON RAYMUS STURDIVANT, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. 

Conrad, Jr., Chief District Judge. (3:06-cr-00194-RJC-1)

Submitted: March 4, 2009 Decided: March 23, 2009 

Before MOTZ, KING, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

David W. Long, POYNER & SPRUILL, Raleigh, North Carolina, for 

Appellant. Amy Elizabeth Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 In accordance with a plea agreement, Devon R. 

Sturdivant pled guilty to conspiracy to attempt to possess with 

intent to distribute cocaine, 21 U.S.C. § 846 (2006), and 

possession of a firearm in furtherance of a drug trafficking 

crime, 18 U.S.C. § 924(c)(1) (2006). He was sentenced to 262 

months in prison. Sturdivant now appeals. His attorney has 

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

(1967), questioning whether the United States should have moved 

for a downward departure based on Sturdivant’s substantial 

assistance, but stating that there are no meritorious issues for 

appeal. Sturdivant has filed a pro se informal brief raising an 

additional issue. We affirm. 

 In imposing the 262-month sentence, the district court 

considered the factors set forth at 18 U.S.C. § 3553(a) (2006). 

With regard to “the history and characteristics of the 

defendant,” the court stated that it would take into 

consideration Sturdivant’s efforts to cooperate with the 

Government. Balancing this cooperation, however, was 

Sturdivant’s extensive criminal history. 

 In the Anders brief, counsel contends that the United 

States should have moved for a downward departure based on 

Sturdivant’s substantial assistance to the United States. See

USSG § 5K1.1. The decision whether to file a § 5K1.1 motion 

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rests solely within the Government’s discretion. United 

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

unless the Government has obligated itself in the plea agreement 

to make such a motion, its refusal to make a § 5K1.1 motion is 

not reviewable absent evidence of an unconstitutional motive. 

Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272 

F.3d at 686-87. 

 Sturdivant’s plea agreement did not obligate the 

United States to file a § 5K1.1 motion; rather, the agreement 

clearly stated that the decision whether to file such a motion 

lay within the sole discretion of the United States. This 

provision was summarized at Sturdivant’s arraignment. Further, 

there is nothing in the record to suggest that the decision not 

to file a § 5K1.1 motion had an unconstitutional motivation. 

 In his informal brief, Sturdivant contends that Count 

Two of the indictment, which charged him with the firearm 

offense, was unconstitutional and deprived the court of 

jurisdiction. This claim is without merit. Defects in an 

indictment are not jurisdictional. United States v. Cotton, 535 

U.S. 625, 631 (2002). Further, Sturdivant’s valid guilty plea 

waived this claimed non-jurisdictional defect. See Tollett v. 

Henderson, 411 U.S. 258, 267 (1973); United States v. Willis, 

992 F.2d 489, 490 (4th Cir. 1993). 

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 We have examined the entire record in this case in 

accordance with the requirements of Anders, and we find no 

meritorious issues for appeal. Accordingly, we affirm. This 

court require 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, counsel may move in this court for leave to withdraw 

from representation. Counsel=s motion must state that a copy of 

the motion was served on the client. The motions to dismiss 

Count Two of the indictment and to correct jurisdictional defect 

are denied. We deny as moot the motions for fair and impartial 

review and to expedite. 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