United States v. McCain ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4818
VICTOR ELVOYD MCCAIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-98-45)
Submitted: May 28, 1999
Decided: June 22, 1999
Before ERVIN, WILKINS, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Malcolm McL. Doubles, Salem, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Sharon K. Burnham, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Victor Elvoyd McCain appeals his conviction entered on his guilty
plea to assault with a dangerous weapon with intent to do bodily harm
in violation of 18 U.S.C. § 113(a)(3) (1994). McCain 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, coun-
sel addressed whether the district court erred by declining to allow
McCain to withdraw his guilty plea and refusing to depart from the
Sentencing Guidelines. The time for filing a supplemental brief has
passed and McCain has not responded, despite being advised of his
right to do so. Because we find counsel's assignments of error to be
without merit, and can discern no other error in the record on appeal,
we affirm McCain's conviction and sentence.
McCain's counsel contends that the district court erred in refusing
to allow McCain to withdraw his guilty plea. We review the district
court's denial of the motion to withdraw his plea for an abuse of dis-
cretion. See United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir.
1996). In order to amount to an abuse of discretion, the district court
must either fail or refuse to exercise its discretion or rely on an erro-
neous legal or factual premise in the exercise of its discretionary
authority. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). In
this case, there is no evidence of an abuse of discretion. The district
court considered McCain's motion in light of the proper legal stan-
dards, see United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991),
and did not rely on any erroneous factual assumptions. Accordingly,
we find no cause to disturb the district court's reasoned order denying
the motion.
McCain also contends that the presentence investigation report
over represented his criminal history and the district court erred in
declining to grant a downward departure from the Sentencing Guide-
lines range. See U.S.S.G. § 4A1.3(c), p.s. (1997). 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 mis-
taken belief that it lacked the authority to depart. See United States
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v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). There is no such error
in this case.
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. Conse-
quently, counsel's motion to withdraw is denied. If counsel believes
that such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation at that time. Coun-
sel'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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