United States v. Nunez-Navarro , 54 F. App'x 164 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4154
EVODIO NUNEZ-NAVARRO, a/k/a Luis
Mondragon,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-01-20)
Submitted: December 19, 2002
Decided: January 8, 2003
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Gretchen C.F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina; Robert
Jack Higdon, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. NUNEZ-NAVARRO
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Evodio Nunez-Navarro pled guilty to Count 1 of his indictment,
conspiracy to possess with intent to distribute five kilograms or more
of cocaine in violation of 21 U.S.C. §§ 841, 846 (2000). The district
court adopted the presentence report ("PSR") without objection and
found that Nunez-Navarro had an offense level of 32 with a criminal
history of III, yielding a sentencing range of 151 to 188 months. After
granting the Government’s departure motion, the court downwardly
departed three levels, giving Nunez-Navarro an offense level of 28
and a sentencing range of 97 to 121 months. The court sentenced him
to 110 months of imprisonment.
On appeal, counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), alleging that there are no meritorious claims on
appeal but raising the issue of whether the sentencing court erred by
not sentencing Nunez-Navarro to the minimum term of imprisonment
under the Guideline range after granting the Government’s motion for
a downward departure. This claim fails as a defendant may not ordi-
narily appeal the extent of a downward departure, unless the departure
decision resulted 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).
We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for
appeal.* Accordingly, we affirm the 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 for further review.
If the client requests that a petition be filed, but counsel believes that
*Despite being given notice and opportunity, Nunez-Navarro has
failed to file a pro se supplemental brief.
UNITED STATES v. NUNEZ-NAVARRO 3
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 ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED