United States v. King ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4263
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CECIL LYNN KING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-636)
Submitted: September 26, 2003 Decided: October 7, 2003
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Dale L. DuTremble, DALE L. DUTREMBLE, L.L.C., Charleston, South
Carolina, for Appellant. Lee Ellis Berlinsky, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cecil Lynn King appeals the district court’s order sentencing
him to 120 months’ imprisonment following his guilty plea to
conspiracy to distribute cocaine in violation of 21 U.S.C. § 846(2000). In his appellate brief, filed pursuant to Anders v.
California, 386 U.S. 738 (1967), King’s counsel asserts the
district court erred by declining to depart below the applicable
mandatory minimum sentence. King was advised of his right to file
a pro se supplemental brief but failed to do so. We affirm.
The denial of a request for downward departure is reviewable
only when the district court mistakenly believed that it lacked the
authority to depart. United States v. Underwood, 970 F.2d 1336,
1338 (4th Cir. 1992) (citing United States v. Bayerle, 898 F.2d 28(4th Cir. 1990)). Because the record discloses that the district
court was aware of its authority to depart, we may not review the
district court's denial of King’s sentencing motion. To the extent
that King attacks the Government’s refusal to move for a downward
departure due to King’s substantial assistance, the Government’s
decision is not reviewable but for exceptional circumstances not
present here. See United States v. Maddox, 48 F.3d 791, 795 (4th
Cir. 1995).
We have reviewed the entire record on appeal as required by
Anders and find no meritorious issues for appeal. Accordingly, we
affirm King’s conviction and sentence. This court requires that
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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
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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