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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding Blake Keller's appeal of a district court's denial of his motion to reconsider its order granting the government's motion to withdraw its conditional Rule 35(b) motion. The Court of Appeals affirms the district court's orders. It finds that the government has absolute discretion regarding whether to file a Rule 35(b) motion unless it had obligated itself in a plea agreement to file the motion or its refusal to file was based on an unconstitutional motive. The Court finds neither circumstance present in this case.

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    Filed: 2006-06-20 Precedential Status: Non-Precedential Docket: 05-6572

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding Blake Keller's appeal of a district court's denial of his motion to reconsider its order granting the government's motion to withdraw its conditional Rule 35(b) motion. The Court of Appeals affirms the district court's orders. It finds that the government has absolute discretion regarding whether to file a Rule 35(b) motion unless it had obligated itself in a plea agreement to file the motion or its refusal to file was based on an unconstitutional motive. The Court finds neither circumstance present in this case.

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    Public Domain
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    6 views2 pages

    United States v. Keller, 4th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding Blake Keller's appeal of a district court's denial of his motion to reconsider its order granting the government's motion to withdraw its conditional Rule 35(b) motion. The Court of Appeals affirms the district court's orders. It finds that the government has absolute discretion regarding whether to file a Rule 35(b) motion unless it had obligated itself in a plea agreement to file the motion or its refusal to file was based on an unconstitutional motive. The Court finds neither circumstance present in this case.

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    of 2

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 05-6572

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    BLAKE KELLER,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Alexandria. Gerald Bruce Lee, District
    Judge. (CR-01-135)

    Submitted:

    May 31, 2006

    Decided:

    June 20, 2006

    Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Frank W. Dunham, Jr., Federal Public Defender, Geremy C. Kamens,


    Assistant Federal Public Defender, Alexandria, Virginia, for
    Appellant. Paul J. McNulty, United States Attorney, John Eisinger,
    Assistant United States Attorney, Alexandria, Virginia, for
    Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Blake Keller appeals the district courts denial of his
    motion to reconsider its order granting the Governments motion to
    withdraw its conditional Fed. R. Crim. P. 35(b) motion.

    For the

    following reasons, we affirm.


    It is well-settled that whether to file a 35(b) motion is
    a matter left to the governments discretion.

    See Fed. R. Crim. P.

    35(b); see also United States v. Dixon, 998 F.2d 228, 230 (4th Cir.
    1993).

    However, a court may grant a downward departure in the

    absence

    of

    government

    motion

    if:

    (1)

    the

    government

    has

    obligated itself in the plea agreement to move for a departure or


    (2) the governments refusal to move for a departure was based on
    an unconstitutional motive.
    181, 186 (1992).

    See Wade v. United States, 504 U.S.

    We find neither circumstance present here and

    thus conclude the Government retained absolute discretion as to


    whether to pursue a Rule 35(b) motion.
    Accordingly,

    we

    affirm

    the

    district

    courts

    order

    granting the Governments motion to withdraw its previously filed


    conditional Rule 35(b) motion and the order denying Kellers motion
    for reconsideration for the reasons stated by the district court.
    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

    - 2 -

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