UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4007

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

FREDDY HURTADO, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:03-cr-00014-RLV-CH-3) 

Submitted: October 14, 2008 Decided: October 16, 2008 

Before KING, GREGORY, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC, 

Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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: 

 Freddy Hurtado appeals from his mandatory minimum 

240-month sentence imposed after he received a downward variance 

and after he pled guilty to conspiracy to possess with intent to 

distribute cocaine and heroin. Hurtado’s counsel filed an 

Anders v. California, 386 U.S. 738 (1967) brief, Hurtado filed a 

pro se supplemental brief, and the Government has declined to 

file a brief. We affirm. 

Hurtado argues that his plea was involuntary because 

he believed he would receive one less drug felony in the 21 

U.S.C. § 851 (2000) information and the Government would file a 

U.S. Sentencing Guidelines Manual § 5K1.1 (2006) motion. He 

requests a sentence below the statutory minimum. He does not 

request that his guilty plea be invalidated, however. 

Hurtado’s plea agreement does not contain a promise that the 

Government would file a § 5K1.1 motion. The Fed. R. Crim. P. 11 

hearing transcript clearly indicates that the plea was based on 

leaving off one of Hurtado’s drug felonies in the § 851 

information but that the Government would not file a § 5K1.1 

motion. Hurtado agreed with the summary of the plea agreement 

and that no other agreements were made outside the plea 

agreement. 

 Hurtado’s plea agreement did not obligate the 

Government to move for a § 5K1.1 departure even if Hurtado 

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provided substantial assistance. Hurtado does not allege, and 

the record does not disclose, any evidence that the Government 

refused to make the motion based on any unconstitutional motive. 

See Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding 

that “federal district courts have authority to review a 

prosecutor’s refusal to file a substantial assistance motion and 

to grant a remedy if they find that the refusal was based on an 

unconstitutional motive.”). Therefore, Hurtado’s claim fails. 

 In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore affirm Hurtado’s 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 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