United States v. Wilkinson ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4227
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NANCY G. WILKINSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-02-209)
Submitted: June 30, 2003 Decided: July 15, 2003
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William Rider Valentino, LAW OFFICE OF WILLIAM R. VALENTINO,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, R. Booth Goodwin, II, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nancy G. Wilkinson appeals her conviction and sentence
following her guilty plea to one count of aiding and abetting
embezzlement from an organization receiving federal funds, in
violation of 18 U.S.C. §§ 666(a)(1), 2 (2000). Counsel has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in
which he states that there are no meritorious issues for appeal.
Although notified of her right to submit a pro se supplemental
brief, Wilkinson has not done so.
Counsel presents for review the district court’s failure to
depart downward based on Wilkinson’s family ties and
responsibilities. This court lacks jurisdiction to review the
district court’s refusal to depart downward unless that refusal is
based on the court’s mistaken belief that it lacked power to
depart. United States v. Edwards, 188 F.3d 230, 238 (4th Cir.
1998). The record shows that the district court knew that it had
the authority to depart but concluded that such a departure was not
warranted. Therefore, this issue is not reviewable. United States
v. Matthews, 209 F.3d 338, 352-53 (4th Cir. 2000).
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious issues for appeal. We
therefore affirm Wilkinson’s conviction and sentence. This court
requires that counsel inform his client, in writing, of her right
to petition the Supreme Court of the United States for further
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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. Counsel’s motion must state that a copy thereof was
served on the client.
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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