United States v. Will Hamilton ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4275
WILL HAMILTON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-679-DWS)
Submitted: March 31, 1999
Decided: April 29, 1999
Before WILLIAMS and KING, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James Barlow Loggins, Winnsboro, South Carolina, for Appellant.
Jane Barrett Taylor, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Will Hamilton appeals his conviction entered on his guilty plea to
possession with intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1) (1994). Hamilton noted a timely appeal and his
attorney filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
whether the district court erred by increasing Hamilton's offense level
by two under U.S.S.G. § 2D1.1(b)(1). Hamilton raised three addi-
tional issues in a supplemental brief filed on his own behalf. Hamilton
contends that the district court erred in (1) rejecting his contention
that his status as a career offender under U.S.S.G.§ 4B1.1 overstated
the seriousness of his criminal history; (2) calculating the relevant
drug amounts for sentencing purposes; and (3) concluding that the
controlled substance at issue was crack cocaine as opposed to some
other form of cocaine base. Finding no merit to any of these claims
of error, we affirm the conviction and sentence.
Because neither Hamilton nor his counsel objected to the contents
of the presentence investigation report, Hamilton has forfeited his
right to appeal issues pertaining to the report absent plain error. See
United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). Finding no
plain error in the record, we conclude that Hamilton has forfeited his
challenges to the § 2D1.1 enhancement, the drug amount, and the
form of the cocaine base for which he was convicted and sentenced.
See United States v. Jackson, 124 F.3d 607, 614 (4th Cir. 1997) (cit-
ing United States v. Olano, 507 U.S. 725, 732 (1993)), cert. denied,
118 S. Ct. 733 (1998). We further conclude that the district court did
not err in determining that Hamilton's Criminal History Category did
not overstate the seriousness of his past criminal offenses. See
U.S.S.G. § 4A1.2 cmt. (n.3). We further note that a district court's
decision not to depart from the sentencing guidelines is not subject to
appellate review unless the refusal to depart is based on the mistaken
belief that it lacked the authority to depart. See United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). There is no such mistaken
belief in this case.
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As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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