United States v. Byrd , 23 F. App'x 146 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4240
JAMES BYRD,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-94)
Submitted: November 20, 2001
Decided: December 3, 2001
Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
G. Ernest Skaggs, SKAGGS & SKAGGS, Fayetteville, West Vir-
ginia, for Appellant. Charles T. Miller, United States Attorney, Lisa
A. Green, Assistant United States Attorney, Huntington, West Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BYRD
OPINION
PER CURIAM:
Pursuant to a plea agreement, James Byrd pled guilty to aiding and
abetting the distribution of hydromorphone, in violation of 18 U.S.C.
§ 2 (1994) and 21 U.S.C. § 846 (1994). Byrd timely appealed. Byrd’s
counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), addressing whether the district court abused its discretion
in failing to sentence Byrd in conformity with a similarly situated co-
defendant who received a shorter sentence. Counsel concedes, how-
ever, that there are no meritorious issues for appeal. Advised of his
right to file a pro se supplemental brief, Byrd has elected not to do
so.
An otherwise proper sentence cannot be challenged on the basis of
an alleged disparity with sentences of co-defendants. United States v.
Davis, 98 F.3d 141, 145 (4th Cir. 1996). To the extent that Byrd
asserts that the district court should have sua sponte made a down-
ward departure in his sentence based on his co-defendant’s sentence,
disparity of sentences among co-defendants is not a ground for down-
ward departure absent prosecutorial misconduct, which is not evident
here. United States v. Fonville, 5 F.3d 781, 783-84 (4th Cir. 1993).
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. We therefore affirm Byrd’s conviction and
sentence. We deny counsel’s motion to withdraw from representation.
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 petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. 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