United States v. Evans , 318 F. App'x 150 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4601
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FREDDIE EVANS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Chief
District Judge. (1:06-cr-00165-1)
Submitted: July 31, 2008 Decided: August 20, 2008
Before WILKINSON, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
S. Mason Preston, PRESTON & WEESE, L.C., Lewisburg, West Virginia,
for Appellant. Charles T. Miller, United States Attorney, Miller A.
Bushong, III, Assistant United States Attorney, Beckley, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freddie Evans, Jr., pled guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute five kilograms
or more of cocaine and fifty or more grams of cocaine base, in
violation of 21 U.S.C. § 846 (2000) (“Count One”); and to one count
of conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h) (2000) (“Count Two”). The district court sentenced Evans
to 288 months’ imprisonment for Count One, to run concurrently with
a term of 240 months’ imprisonment for Count Two. Evans now
appeals the district court’s judgment, challenging only his
sentence. For the following reasons, we affirm.
On appeal, Evans essentially argues that the district
court erred in denying his motion for a downward departure,
pursuant to U.S. Sentencing Guidelines Manual § 4A1.3 (2006), on
the basis that his criminal history category over-represented the
seriousness of his criminal history. However, a district court’s
failure to grant a downward departure is not reviewable unless the
court was under the mistaken impression that it lacked the
authority to depart. United States v. Brewer, 520 F.3d 367, 371
(4th Cir. 2008). Here, the district court clearly understood its
authority to depart. Accordingly, this claim is not cognizable on
appeal.
We affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
- 2 -
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 3 -