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 1998-07

United States v. Reel ( 1998 )


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  • UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.                                                                  No. 97-4552
TAMMY L. REEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Frederick P. Stamp, Jr., Chief District Judge;
W. Craig Broadwater, District Judge.
(CR-95-12)
Submitted: June 30, 1998
Decided: July 28, 1998
Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph A. Matyskiela, MCDERMOTT, BONENBERGER, MCDER-
MOTT & GALLAWAY, Wheeling, West Virginia, for Appellant.
William D. Wilmoth, United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Tammy L. Reel appeals her conviction and sentence for maintain-
ing a crack house, in violation of
    21 U.S.C. § 856
     (1994). Reel claims
that the trial court erred in sentencing her. Finding no error, we
affirm.
First, Reel avers that the district court erred in refusing to award
her an additional downward adjustment for acceptance of responsibil-
ity under the sentencing guidelines. Specifically, Reel claims that the
district court based its denial of the downward adjustment on her
motivation to enter a guilty plea instead of on whether she provided
timely information about her involvement in the offense to the Gov-
ernment.
We review the district court's determination of timeliness, a factual
question, for clear error. See United States v. Lancaster,
    112 F.3d 156
    , 158 (4th Cir. 1997); United States v. Cusack,
    901 F.2d 29
    , 31
(4th Cir. 1990). Contrary to Reel's allegations, we find that the dis-
trict court denied the requested additional adjustment because Reel
failed to timely provide complete information about her own offense
and failed to timely notify authorities of her intention to plead guilty.
The record reflects that Reel waited over a month to execute the plea
agreement and executed the agreement just three weeks prior to the
trial date. Because Reel's guilty plea was not timely so as to enhance
the efficiency of the court or the Government, we find that the district
court did not clearly err in denying the requested adjustment.
Next, to the extent that Reel contends that the district court erred
in refusing to grant a downward departure based on her claim of coer-
cion or duress, we find she has no claim. Reel's counsel argued for
a departure on these bases at sentencing, and the court denied the
request, finding that Reel did not demonstrate sufficient justification
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for a departure based on an imperfect defense of coercion or duress.
See United States v. Bailey,
    444 U.S. 394
    , 410-15 (1980).
The denial of a request for a downward departure is reviewable
only if the district court mistakenly believed that it lacked the author-
ity to depart. See United States v. Underwood ,
    970 F.2d 1336
    , 1338
(4th Cir. 1992). Contrary to Reel's averments, the record reflects that
the district court was aware of its authority to depart but chose not to
depart after considering the arguments of counsel. We find that the
district court's determination that Reel did not present sufficient justi-
fication for a departure based on an imperfect coercion or duress
defense did not constitute a belief by the court that it was prohibited
by law from departing; nor did it indicate that the court misapplied
a legal standard. Therefore, Reel's sentence within the guidelines
range is not reviewable. See Underwood,
    970 F.2d at 1338
    .
Accordingly, we affirm Reel's conviction and sentence. We dis-
pense 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
3