United States v. McRae ( 2007 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4565
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    MICHAEL MCRAE, a/k/a Clyde McRae,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
    Chief District Judge. (3:04-cr-00295-3)
    Submitted:   December 22, 2006            Decided:   January 17, 2007
    Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    J. Charles Jones, Charlotte, North Carolina, for Appellant.
    Kimlani Murray Ford, OFFICE OF THE UNITED STATES ATTORNEY,
    Charlotte, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Michael McRae pled guilty pursuant to a plea agreement to
    one count of conspiracy to possess with intent to distribute
    cocaine base in violation of 
    21 U.S.C. §§ 841
    (a)(1) and 846 (2000).
    Because McRae was previously convicted of two felony drug offenses,
    the Government filed an information to seek enhanced penalties in
    accordance with 
    21 U.S.C. § 851
     (2000).    In compliance with the
    statutory mandatory minimum, the district court sentenced McRae to
    life in prison.   See 
    21 U.S.C. § 841
    (b)(1)(A) (2000).
    Counsel for McRae has filed a brief pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967), alleging McRae’s sentence was
    unduly harsh. McRae filed a pro se supplemental brief claiming the
    Government should have moved for a downward departure of the
    mandatory minimum sentence, but refused to do so.   We affirm.
    After a review of the record, we conclude the life
    sentence imposed upon McRae was required by statute.     Pursuant to
    
    21 U.S.C. § 841
    (b)(1)(A), any person convicted of conspiracy to
    distribute the amount of cocaine base to which McRae pled guilty,
    and who has “two or more prior convictions for a felony drug
    offense,” must receive a “mandatory term of life imprisonment
    without release.”   
    21 U.S.C. § 841
    (b)(1)(A).    While a district
    court may depart below the sentencing range established by the
    Sentencing Guidelines, such a departure may result in a sentence
    below the minimum term specified in the offense of conviction only
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    if   permitted       by   law.        
    18 U.S.C. § 3553
    (e)    (2000)    (limiting
    authority of district court to depart below statutory minimum to
    cases in which the government has moved for such a departure on the
    basis of substantial assistance); United States v. Patterson, 
    38 F.3d 139
    , 146 n.8 (4th Cir. 1994) (observing that “[t]he district
    court could have sentenced below the statutory minimum only if this
    departure     was     based      on   the    Government's     motion   for     downward
    departure due to Defendant's substantial assistance”); cf. 
    18 U.S.C. § 3553
    (f)     (2000)          (safety   valve    provision)     (limiting
    applicability of statutory minimum penalties for certain drug
    offenses      when    specified        criteria      are    met);   U.S.     Sentencing
    Guidelines Manual § 5C1.2 (2005) (same).
    In this case, there was no permissible basis for the
    district court to depart from the mandatory life sentence.                          The
    Government exercised the discretion reserved to it in the plea
    agreement and refused to make a substantial assistance motion
    because McRae refused to fully cooperate and violated the terms of
    his pretrial release by using drugs.                     Moreover, the safety valve
    provision did not apply because McRae had too many criminal history
    points.    See 
    18 U.S.C. § 3553
    (f) (defendant may not have more than
    one criminal history point for safety valve provision to apply).
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues for
    review. We therefore affirm McRae’s conviction and sentence. This
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    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.    Counsel's motion must state that a copy thereof
    was served on the client.
    We dispense with oral argument because the facts and
    legal contentions are adequately presented in the materials before
    the court and argument would not aid the decisional process.
    AFFIRMED
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Document Info

Docket Number: 06-4565

Judges: Motz, Traxler, Gregory

Filed Date: 1/17/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024