United States v. Dozier ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4335
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE LAMONT DOZIER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:03-cr-00372-TLW-1)
Submitted: November 30, 2010 Decided: December 17, 2010
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. Carrie Ann Fisher, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Lamont Dozier appeals the district court’s
grant in part of the government’s Fed. R. Crim. P. 35(b) motion
to reduce his sentence for substantial assistance. Appellate
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), arguing that the district court’s chosen method
of reducing the sentence constituted a violation of law or an
incorrect application of the sentencing guidelines. Dozier was
notified of his right to file a pro se supplemental brief, but
has not filed a brief. For the reasons explained below, we
affirm the amended judgment.
“[A]ppeals from rulings on Rule 35(b) motions are
governed by 18 U.S.C. § 3742 [(2006)].” United States v.
Hartwell, 448 F.3d 707, 712 (4th Cir. 2006) (citing United
States v. Pridgen, 64 F.3d 147, 149 (4th Cir. 1995)). This
court does not have “jurisdiction to review the extent of the
district court’s downward departure, except in instances in
which the departure decision resulted in a sentence imposed in
violation of law or resulted from an incorrect application of
the Guidelines.” United States v. Hill, 70 F.3d 321, 324
(4th Cir. 1995).
If a defendant alleges that his otherwise final
sentence was imposed in violation of law, however, he “may make
that claim in appealing a ruling on a Rule 35(b) motion.”
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Hartwell, 448 F.3d at 713. Such a claim is reviewed for abuse
of discretion. See Pridgen, 64 F.3d at 150.
In the Anders brief, appellate counsel states that
Dozier takes the position that the district court’s refusal to
structure the reduction by reducing the offense level “resulted
in a sentence imposed in violation of law and/or resulted from
an incorrect application of the sentencing guidelines.” This
claim is one that we have jurisdiction to review. However,
because Dozier did not preserve this claim for appeal, it is
reviewed for plain error. United States v. Olano, 507 U.S. 725,
732-37 (1993).
We conclude that the district court did not plainly
err in choosing to reduce Dozier’s total sentence by months
rather than by reducing the offense level and imposing sentence
within a revised guideline range. Therefore, the court did not
abuse its discretion by reducing Dozier’s sentence in this
manner. Further, the court did not abuse its discretion in
denying his motion for reconsideration.
Accordingly, we affirm the sentence imposed by the
district court. In accordance with Anders, we have reviewed the
entire record for any meritorious issues and have found none.
This court requires that counsel inform Dozier, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Dozier requests that a petition be filed,
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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 Dozier. 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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