UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

MELVIN FRANKLIN MULL, a/k/a B. J.  No. 02-4216

Mull, a/k/a Melvin Franklin, a/k/a

Eugene Moore, a/k/a Brian Jason

Mull,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-99-60-V)

Submitted: August 29, 2002

Decided: September 9, 2002

Before WILLIAMS, MOTZ, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Patricia L. Riddick, PATRICIA L. RIDDICK, P.L.L.C., Mooresville,

North Carolina, for Appellant. Gretchen C.F. Shappert, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Melvin Franklin Mull appeals his conviction and 188-month sentence for conspiracy to possess with intent to distribute cocaine and

cocaine base, in violation of 21 U.S.C. § 846 (2000). Mull’s counsel

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), alleging there are no meritorious issues on appeal, but

raising two claims on Mull’s behalf. Although Mull was informed of

his right to file a supplemental brief, he has not done so. We affirm.

First, Mull contends the prosecutor engaged in misconduct by

refusing to move for a downward departure based on substantial assistance. When, as in this case, the plea agreement accords the Government "sole" discretion whether to file a substantial assistance motion,

the defendant generally may not complain about the failure to file

such a motion. See United States v. Wallace, 22 F.3d 84, 87 (4th Cir.

1994). The decision not to file a motion is reviewable if the defendant

makes a substantial threshold showing that the Government’s discretionary decision was unconstitutional. Because Mull has never even

claimed, much less made the required showing, that the Government’s decision was based on an unconstitutional motive or that it

was not rationally related to a legitimate governmental purpose, we

refuse to review his claim. See Wade v. United States, 504 U.S. 181,

185-86 (1992). 

Second, Mull claims that his trial attorney was ineffective for failing to seek a downward departure. Because ineffective assistance of

counsel does not conclusively appear on the face of the record, we

will not address that claim on direct appeal. See United States v. King,

119 F.3d 290, 295 (4th Cir. 1997). 

In accordance with Anders, we have reviewed the entire record and

have found no meritorious issues for appeal. We therefore affirm

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Mull’s conviction and sentence. We require that counsel inform her

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 petition would be frivolous,

then counsel may move in 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 presented in the materials before the

court and argument would not aid the decisional process. 

AFFIRMED

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