United States v. Walker , 262 F. App'x 509 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4098
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND WALKER, a/k/a Raymond Walker, Jr.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:06-cr-00528)
Submitted: January 10, 2008 Decided: January 31, 2008
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Albert P. Shahid, Jr., SHAHID LAW OFFICE, LLC, Charleston, South
Carolina, for Appellant. Reginald I. Lloyd, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Raymond Walker pled guilty
to possession with intent to distribute marijuana, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(D) (2000), and using and carrying a
firearm during and in relation to, and possessing a firearm in
furtherance of, a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c)(1)(A) (West Supp. 2007). The district court
sentenced Walker to ninety months in prison. Walker timely
appealed.
Walker first contends that the district court erred in
accepting his guilty plea. Because Walker did not seek to withdraw
his guilty plea in the district court and points to no errors in
the Fed. R. Crim. P. 11 hearing, we find that the district court
did not plainly err in accepting his guilty plea. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing standard).
In addition, Walker argues that the district court erred
by failing to downwardly depart from the guideline range pursuant
to U.S. Sentencing Guidelines Manual § 5K2.13 (2005), based on his
diminished capacity. 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. Matthews, 208 F.3d 338, 352 (4th Cir. 2000); see also
United States v. Cooper, 437 F.3d 324, 333 (3d Cir. 2006)
(collecting cases declining to review district court’s decision not
to depart, even after United States v. Booker, 543 U.S. 220(2005)). Because Walker did not request a departure, the district
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court did not consider a departure based on his diminished capacity
and thus did not make any decisions concerning its authority to
depart on that ground. We therefore lack jurisdiction to review
the district court’s failure to depart sua sponte.
Accordingly, we affirm the judgment of the district
court. 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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