United States v. Atwell , 81 F. App'x 813 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4073
MARTY SHANE ATWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-01-21-V)
Submitted: October 27, 2003
Decided: December 4, 2003
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Eric A. Bach, Charlotte, North Carolina, for Appellant. Douglas Scott
Broyles, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ATWELL
OPINION
PER CURIAM:
Marty Shane Atwell pleaded guilty to one count of conspiracy to
distribute Oxycodone, in violation of 21 U.S.C. §§ 841(a), 846
(2000). Atwell was sentenced to 108 months in prison. He now
appeals. His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising three claims but stating that
there are no meritorious issues for review. Atwell was advised of his
right to file a pro se supplemental brief, but has not filed such a brief.
Atwell and his coconspirators obtained prescriptions for OxyCon-
tin through prescription fraud. Atwell also distributed the drug. Inves-
tigators estimated that Atwell was accountable for approximately
28,592 dosage units of OxyContin.
Our review of the record discloses full compliance with Fed. R.
Crim. P. 11. Further, there is no merit to the claim that the district
court should have required the United States to move for downward
departure based upon substantial assistance. We note that the Govern-
ment must move for such a departure, and there is no suggestion that
the United States’ decision not to make a motion was based upon
improper motive or that the United States ceded to the district court
its authority to make the departure decision. See United States v. But-
ler, 272 F.3d 683, 686 (4th Cir. 2001). Finally, we conclude that the
district court correctly calculated Atwell’s guideline range of 108-135
months and did not err in sentencing him to 108 months in prison.
We therefore affirm. As required by counsel, we have reviewed the
entire record and have found no meritorious issues for appeal. We
deny counsel’s motion to withdraw from representation at this time.
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 Atwell requests that a petition be filed, but counsel believes
that such a petition would be frivolous, counsel may move in this
court to withdraw representation. Counsel’s motion must state that
counsel served a copy of the motion on Atwell. We dispense with oral
argument because the facts and legal contentions are adequately pre-
UNITED STATES v. ATWELL 3
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED