United States v. Berry , 40 F. App'x 773 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4709
ANTHONY SHAWN DALE BERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-00-185)
Submitted: May 8, 2002
Decided: July 10, 2002
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David C. Smith, SMITH & SCANTLEBURY, L.C., Bluefield, West
Virginia, for Appellant. Kasey Warner, United States Attorney, Mon-
ica K. Schwartz, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BERRY
OPINION
PER CURIAM:
Anthony Shawn Dale Berry pled guilty to conspiracy to distribute
various Schedule II and III controlled substances, in violation of 21
U.S.C. § 846 (1994). Berry’s attorney has filed a brief citing Anders
v. California, 386 U.S. 738 (1967), contending the district court
improperly sentenced Berry, but stating that, in his view, there are no
meritorious issues for appeal. Berry was informed of his right to file
a pro se supplemental brief but has not done so.
Berry presents three issues for consideration. First, he contends the
district court erred in refusing to depart downward based on the dis-
parity between his sentence and a co-defendant’s sentence. We do not
review a district court’s refusal to grant a downward departure unless
the court erroneously believed that it lacked the authority to depart.
See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). We
find the district court recognized its authority to grant Berry’s motion,
but declined to do so under the circumstances. Therefore, we will not
review this claim.
Second, Berry argues the district court erred in applying a two-
level enhancement to Berry’s sentence pursuant to United States Sen-
tencing Guidelines Manual § 3B1.1(c) for his role in the offense. We
review for clear error. United States v. Perkins, 108 F.3d 512, 518
(4th Cir. 1997). We find the district court did not clearly err in apply-
ing a two-level enhancement for Berry’s role in the offense.
Finally, Berry contends the district court abused its discretion in
ordering his federal sentence to run consecutively to his prior undis-
charged state sentences. We find no abuse of discretion. See 18
U.S.C. § 3584(a) (1994); United States v. Puckett, 61 F.3d 1092, 1097
(4th Cir. 1995).
In accordance with Anders, we have reviewed the entire record and
find no meritorious issues for appeal. We therefore affirm Berry’s
conviction and sentence. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of the
UNITED STATES v. BERRY 3
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 in this court for leave to withdraw from repre-
sentation. 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