United States v. Keitt ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4622
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN KEITT,
Defendant - Appellant.
No. 05-4675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN KEITT,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-04-231-V; CR-04-230-V)
Submitted: February 10, 2006 Decided: March 15, 2006
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated cases, Marvin Keitt appeals his
sentence following a guilty plea to two separate bills of
information, the first charging conspiracy to defraud the United
States in violation of 18 U.S.C. § 371 (2000), and the second
charging conspiracy to defraud the United States in violation of 18
U.S.C. § 371 and conspiracy to commit money laundering in violation
of 18 U.S.C. § 1956(h) (2000). Keitt was sentenced to 41 months’
imprisonment on each count of conspiracy to defraud, to be served
concurrently. On appeal, his attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), raising as potential
issues whether the Government’s failure to move for downward
departure was prosecutorial misconduct and whether his sentence was
reasonable. Although advised of his right to do so, Keitt has not
filed a supplemental pro se brief.
Keitt first claims that his disclosures to the Government
amounted to substantial assistance and thus the Government was
required to move for downward departure. The Government was not
obligated under its plea agreement to file such a motion, United
States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000), and there is no
indication that it refused to make the motion based on an
unconstitutional motive such as race or religion. Wade v. United
States, 504 U.S. 181, 185-86 (1992). Rather, the Government
conceded that Keitt had provided assistance but declined to move
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for downward departure after Keitt violated several of the
conditions of his release on bond and his bond was revoked. See
United States v. David, 58 F.3d 113, 114 (4th Cir. 1995) (upholding
the government’s refusal to make a § 5K1.1 motion where defendant
had provided substantial assistance and then jumped bail prior to
sentencing). We find the record does not reveal prosecutorial
misconduct.
Keitt next contends that his sentence was unreasonable.
After the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), a sentencing court is no longer bound by the
range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005) (noting
after Booker, sentencing courts should determine the sentencing
range under the guidelines, consider the other factors under
§ 3553(a), and impose a reasonable sentence within the statutory
maximum). However, in determining a sentence post-Booker,
sentencing courts are still required to calculate and consider the
guideline range prescribed thereby as well as the factors set forth
in 18 U.S.C. § 3553(a) (2000). Id.As stated in Hughes, this court will affirm a post-Booker
sentence if it is both reasonable and within the statutorily
prescribed range. Id. at 546-47. This court has further stated
that “while we believe that the appropriate circumstances for
imposing a sentence outside the guideline range will depend on the
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facts of individual cases, we have no reason to doubt that most
sentences will continue to fall within the applicable guideline
range.” United States v. White, 405 F.3d 208, 219 (4th Cir.),
cert. denied, 126 S. Ct. 668 (2005). We find the district court
properly calculated the guideline range and appropriately treated
the guidelines as advisory. The court sentenced Keitt only after
considering and examining the sentencing guidelines and the factors
set forth in § 3553(a). Based on these factors, and because the
court sentenced Keitt within the applicable advisory guideline
range and the statutory maximum, we find that Keitt’s sentence of
41 months of imprisonment is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Keitt’s convictions and sentences. We also
grant the Government’s motion for relief from duty to file a brief.
We deny Appellant’s counsel’s motion to withdraw as counsel. 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. 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
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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