United States v. Beverly , 272 F. App'x 283 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALAN BEVERLY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. G. Ross Anderson, Jr., District
Judge. (7:05-cr-01080-GRA-2)
Submitted: March 21, 2008 Decided: April 8, 2008
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
Reginald I. Lloyd, United States Attorney, Leesa Washington,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alan Beverly pled guilty to conspiracy to distribute
methamphetamine, 21 U.S.C. § 846 (2000), and was sentenced to 121
months in prison. Beverly now appeals. We affirm.
Beverly first contends that his probation officer
improperly recommended that he be assigned one criminal history
point in connection with a July 2000 charge of driving under the
influence. Although Beverly claims that there was no “adjudication
of guilt” on that charge, see U.S. Sentencing Guidelines Manual
§ 4A1.2(a)(1) (2005), the district court relied upon a court record
showing that Beverly pled guilty to the offense. When challenging
the district court’s reliance on information in a presentence
report, the defendant bears the burden of establishing that the
information is incorrect. United States v. Love, 124 F.3d 595, 596
(4th Cir. 1998); United States v. Terry, 916 F.2d 157, 162 (4th
Cir. 1990). In light of the official court record establishing
that Beverly entered a guilty plea, we conclude that Beverly did
not meet his burden and that he was properly assigned one criminal
history point for the offense.
Beverly also complains that he did not receive an
anticipated downward departure based on his substantial assistance.
Because Beverly did not raise this matter at sentencing, our review
is for plain error. See United States v. Olano, 507 U.S. 725, 732-
37 (1993). After carefully examining the record, we discern no
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such error in connection with this claim. We note that the
district court did not misunderstand its authority to depart, and
any failure to depart is therefore not reviewable on appeal. See
United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990). We
also hold that the district court did not err in denying Beverly’s
motion for a continuance.
We accordingly affirm. 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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