United States v. Allen , 383 F. App'x 313 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRONE ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:02-cr-00750-TLW-1)
Submitted: June 3, 2010 Decided: June 17, 2010
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Rose
Mary Sheppard Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrone Allen pled guilty to two counts of using and
carrying a firearm in relation to a crime of violence and aiding
and abetting such conduct, in violation of 18 U.S.C. §§ 924(c),
2 (2006). His counsel has filed a brief under Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious arguments for appeal. Allen has submitted a pro se
supplemental brief in which he claims he was unaware he was
pleading guilty as an aider and abettor and that he is actually
innocent of brandishing a shotgun during and in relation to a
crime of violence. The Government did not file a brief.
We have reviewed the record and the plea colloquy and
find Allen’s guilty plea to the two charges was knowing and
voluntary and there was no constructive amendment to the
indictment. The record clearly shows Allen was aware he was
pleading guilty to the two charges as an aider and abettor.
We further find no error with Allen’s sentence. Allen
did not object to any portion of the presentence report’s
calculations except regarding the amount of restitution which
was decided in his favor. Thus, any claim he may have would be
reviewed for plain error. To demonstrate plain error, an
appellant must establish that an error occurred, that it was
plain, and that it affected his substantial rights. United
States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.
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Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005). There was no
error with respect to the Guidelines sentence because it was the
same as the statutory minimum sentence for each conviction.
Furthermore, the court granted the Government’s motion for a
downward departure.
There are no grounds upon which to appeal the district
court’s decision to grant the downward departure and the extent
of that departure. See 18 U.S.C. § 3742(a) (2006); United
States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995). Even after
United States v. Booker, 543 U.S. 220 (2005), this court lacks
the authority to review a court’s decision to depart “unless the
court failed to understand its authority to do so.” United
States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). Clearly,
the court was aware of its authority to depart.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires 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 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
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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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