United States v. Chisolm , 53 F. App'x 228 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4285
WENDELL SAMUEL CHISOLM,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Falcon B. Hawkins, Senior District Judge.
(CR-01-692)
Submitted: November 5, 2002
Decided: December 3, 2002
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. Derk L. B. Van Raalte, IV, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
2 UNITED STATES v. CHISOLM
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Wendell Samuel Chisolm appeals his conviction and sentence
entered on his guilty plea to armed robbery and two related firearms
offenses in violation of 18 U.S.C. § 371 (2000), and 18 U.S.C.
§ 924(c) (2000). In a thorough but otherwise unremarkable Fed. R.
Crim. P. 11 hearing, Chisolm waived indictment and pled guilty to a
string of armed robberies of banks and businesses in and around
Charleston, South Carolina. Chisolm’s attorney noted a timely appeal
and filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), in which he represents that there are no arguable issues
of merit presented by this appeal. Nonetheless, he directs the court’s
attention to the extent of the district court’s departure from the man-
datory minimum sentences in this case, and suggests that Chisolm
might have been entitled to additional downward departures based on
the perceived disparity in sentencing between Chisolm and a co-
conspirator.
Chisolm filed a supplemental brief in which he echoed the com-
plaints regarding the district court’s sentencing and urged that the
court should have departed downward on the basis of numerous other
grounds. Chisolm also suggested that the Government had engaged in
some form of misconduct in its description of the offense conduct and
his role in it. Additionally, Chisolm contends that his counsel failed
to afford him constitutionally adequate assistance in aiding his plea
of guilty. Because we find no merit to any of Chisolm’s assignments
of error, we affirm Chisolm’s conviction and sentence. To the extent
that Chisolm and his attorney seek to raise issues over which this
court lacks jurisdiction, this appeal is dismissed.
Counsel contends that the district court erred in the extent of its
downward departure. A defendant may not ordinarily appeal the
extent of a downward departure unless the departure decision resulted
UNITED STATES v. CHISOLM 3
in a violation of law or resulted from an incorrect application of the
guidelines. United States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995).
Counsel makes no such allegation in this case, and no error of that
magnitude appears from the record. Accordingly, the issue is not
appealable and the appeal is dismissed on this point. Similarly, Chi-
solm argues in his informal brief that there were numerous other
grounds on which the district court could have departed downward,
including the perceived disparity in his sentence and that of his co-
conspirator. This court does not have jurisdiction to review the district
court’s decision not to depart downward on those other grounds
unless the district court mistakenly believed it lacked authority to
depart downward. United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990). Because there is no plausible assertion that the district
court labored under that mistaken belief, the appeal is dismissed on
this issue as well. United States v. Bailey, 975 F.2d 1028, 1035 (4th
Cir. 1992).
In his informal brief, Chisolm also suggests that his counsel was
ineffective in assisting his entry of a guilty plea. Claims of attorney
error are not cognizable on direct appeal unless counsel’s ineffective-
ness appears plainly on the record. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997); United States v. DeFusco, 949 F.2d
114, 120-21 (4th Cir. 1991). Such claims are better suited to a motion
under 28 U.S.C. § 2255 (2000). See DeFusco, 949 F.2d at 120. No
error on the part of counsel appears plainly on the face of the record
before the court. Finally, there is no merit to Chisolm’s contention
that the prosecution somehow engaged in misconduct in the descrip-
tion of his offense conduct, both at the plea hearing and in the presen-
tence report. See United States v. Golding, 168 F.3d 700, 702 (4th Cir.
1999).
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Forth Circuit Judicial Council in implementation of the Criminal Jus-
tice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
4 UNITED STATES v. CHISOLM
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
Chisolm’s conviction and sentence are hereby affirmed. To the
extent that Chisolm and counsel attempt to appeal issues over which
this court lacks jurisdiction, this appeal is dismissed. We deny Chi-
solm’s pending motion for the appointment of replacement counsel at
the Government’s expense and dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED IN PART; DISMISSED IN PART