United States v. Smith ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4482
ANDRE SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-312)
Submitted: April 7, 1998
Decided: May 11, 1998
Before WIDENER, ERVIN, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
Brett A. Perry, ELEAZER & PERRY, L.L.P., Columbia, South Caro-
lina, for Appellant. J. Rene Josey, United States Attorney, Alfred W.
Bethea, Jr., Assistant United States Attorney, Florence, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Andre Smith appeals his sentence imposed after he pled guilty to
being a felon in possession of a firearm in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(e) (West Supp. 1998). The district court sentenced
Smith to 360 months imprisonment to be followed by a five-year term
of supervised release.* Smith's attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), challenging the
extent of the sentencing court's downward departure from the sen-
tencing guidelines and the length of the sentence because it was dif-
ferent from the sentence predicted by Smith's attorney and the
government. Counsel concedes, however, that there are no meritori-
ous grounds for appeal. Smith was notified of his right to file a pro
se supplemental brief, but he failed to do so.
In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Smith was
informed in the plea agreement and at the plea colloquy that any state-
ments made by counsel or the government estimating the length of the
sentence were not binding on the court, and Smith stated that he
understood. We find that Smith's guideline range was properly calcu-
lated pursuant to the U.S. Sentencing Guidelines Manual (1995). As
such, the district court's imposition of a sentence within that range
does not state an appealable question under 18 U.S.C.A. § 3742 (West
1985 & Supp. 1998). See United States v. Porter , 909 F.2d 789, 794
(4th Cir. 1990). Nor is the extent of the district court's downward
departure from the guidelines appealable. See United States v. Hill, 70
F.3d 321, 323 (4th Cir. 1995).
_________________________________________________________________
*The district court sentenced Smith to 402 months imprisonment but
awarded him 42 months credit for time served in state custody on a
related case, for a total sentence of 360 months. The court also ordered
the sentence to run concurrently with the state sentence on the related
case.
2
Accordingly, we dismiss that portion of the appeal and affirm the
conviction and sentence in all other respects. 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 such a peti-
tion 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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED IN PART AND DISMISSED IN PART
3