United States v. Allen ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5882
POLLY ANN ALLEN, d/b/a Allens Tax
Service,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-380)
Submitted: July 23, 1996
Decided: August 12, 1996
Before WIDENER, WILKINS, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Langdon Dwight Long, FEDERAL PUBLIC DEFENDER'S
OFFICE, Columbia, South Carolina, for Appellant. William Earl
Day, II, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Polly Ann Allen and her husband ran a tax service for several
years. Both were charged in a thirty-one count indictment with con-
spiracy and aiding in the preparation of false and fraudulent tax
returns. In 1995, Allen pled guilty pursuant to a plea agreement to two
counts of false and fraudulent preparation, in violation of 26 U.S.C.A.
§ 7206(2) (West 1989). The district court sentenced her to twenty-
four months imprisonment followed by one year of supervised
release. She now appeals.
Allen's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising two issues but stating that,
in his view, no meritorious issues exist for appeal. Allen was notified
of her right to file a supplemental brief and raise additional issues, but
she has not done so. After a complete and independent review of the
record, we affirm Allen's conviction and sentence.
Counsel first raises the issue of the district court's compliance with
Fed. R. Crim. P. 11 in conducting the plea proceeding. Our review of
the transcript convinces us that the district court conducted a clear and
thorough hearing, insuring that Allen understood her rights, the rights
she would forego by pleading guilty, the elements of the charge
against her, the penalties she faced, the impact of the sentencing
guidelines, and the effect of the plea agreement. The court talked to
Allen to determine that her plea was voluntary and based on discus-
sions with her attorney. The court heard a factual basis for the crimes.
Thus, the district court complied fully with the requirements of Rule
11, and this claim is without merit.
Allen challenges the district court's refusal to make a downward
departure from the sentence computed under the guidelines, because
she has two young children and her parents are infirm. Where, as
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here, the district court recognizes its power to depart downward
because of family responsibilities under U.S.S.G.§ 5H1.6, its deci-
sion declining to do so is not reviewable. United States v. Weddle, 30
F.3d 532, 540-41 (4th Cir. 1994). This claim entitles Allen to no
relief.
This court requires that counsel inform his client, in writing, of her
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 such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We affirm Allen's conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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