United States v. Wilson , 2 F. App'x 310 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4217
FRANK WILSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-98-322)
Submitted: December 29, 2000
Decided: January 23, 2001
Before NIEMEYER and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
R. Bruce Wallace, WALLACE & TINKLER, Charleston, South Car-
olina, for Appellant. Robert Hayden Bickerton, Assistant United
States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILSON
OPINION
PER CURIAM:
Frank Wilson pled guilty to conspiring to possess with the intent
to distribute cocaine base, in violation of 21 U.S.C. § 846 (1994). His
guideline range was 151 to 188 months. Prior to sentencing, Wilson
filed a motion for downward departure and a memorandum in support
of that motion, asserting that he voluntarily underwent extraordinary
post-offense rehabilitation, and that his criminal history category
over-represented the seriousness of his criminal history. The govern-
ment also filed a motion for downward departure pursuant to U.S.
Sentencing Guidelines Manual § 5K1.1 (1998), citing Wilson’s guilty
plea and his cooperation in other prosecution efforts. The district
court granted the Government’s motion, but denied Wilson’s. Wilson
was sentenced to ninety-one months imprisonment.
In denying Wilson’s motion to depart further, the district court
stated that it believed it could depart only once, and that even if it had
the authority to depart a second time, it would not do so in this case
because Wilson had not shown sufficient grounds to warrant depar-
ture.
Wilson’s counsel timely filed a brief pursuant to Anders v. Califor-
nia, 386 U.S. 738 (1967), asserting that there are no meritorious
issues for appeal. Counsel raised as a potential issue the trial court’s
refusal to depart downward on Wilson’s motion, alleging that the trial
court’s action was based on an erroneous belief that it lacked the
authority to depart, and that the trial court erred by failing to consider
the injuries sustained by Wilson while incarcerated and awaiting trial.
Wilson was notified of his right to file a supplemental pro se brief to
this Court, but he has not done so. Because we find the assignment
of error to lack merit and discern no other error in the record, we
affirm.
The only circumstance under which an otherwise properly calcu-
lated sentence can be challenged on appeal is when the trial court’s
refusal to depart from sentencing guidelines is based upon an errone-
ous belief that it lacked the authority to do so. United States v. Jones,
18 F.3d 1145, 1148 (4th Cir. 1994). Generally, resentencing is
UNITED STATES v. WILSON 3
required when the sentencing court’s refusal to depart is based upon
such an erroneous belief. United States v. Wilson, 896 F.2d 856, 858-
60 (4th Cir. 1990).
Although the trial court’s expressed belief that it lacked the author-
ity to depart more than once is inconsistent with this Court’s holding
in Wilson, id., the district court did not base its refusal to depart solely
upon its perceived lack of authority to do so. In discussing the refusal
to depart downward upon Wilson’s motion, the court specifically
stated that, even if it had the authority to depart, it would not do so.
Because the district court made clear that it would have denied Wil-
son’s motion had it correctly concluded that it had the authority to
depart, we find it unnecessary to vacate the sentence and remand.
Wilson next claims that the district court should have departed
based on injuries he sustained while incarcerated and awaiting trial.
Absent plain error or fundamental miscarriage of justice, however,
this court will not review an issue that has not been raised in the dis-
trict court. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993).
After the district court decided to grant the Government’s motion, the
court offered Wilson an opportunity to make a statement. Wilson took
the opportunity, but did not mention any injuries suffered while incar-
cerated and awaiting trial. Nothing in the record suggests that the trial
court’s failure to discover or address the physical injuries was plain
error and nothing suggests that a fundamental miscarriage of justice
has resulted therefrom. Thus, the issue is not cognizable on appeal.
We affirm Wilson’s sentence. In accordance with Anders, we have
reviewed the entire record and have found no meritorious issues for
appeal. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED