United States v. Christopher Smith , 458 F. App'x 275 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4656
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER LADOUGLAS SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00187-WO-1)
Submitted: December 15, 2011 Decided: December 19, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant. Clifton Thomas Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher LaDouglas Smith appeals from his
conviction for distribution of cocaine base and his resulting
180-month sentence, entered pursuant to his guilty plea. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), concluding that there are no
meritorious issues for appeal but questioning whether the
district court improperly denied Smith’s motion for a downward
departure. In his pro se supplemental brief, Smith contends
that the drug amount for which he was held responsible was
incorrect and untimely disclosed. We affirm.
First, Smith asserts that the district court erred in
denying his motion for a departure on the basis that his
criminal record over-represented his criminal activity.
However, we lack the authority to review a district court’s
denial of a downward departure unless the district court did not
recognize its authority to depart. United States v. Brewer, 520
F.3d 367, 371 (4th Cir. 2008). As it is clear that the district
court understood its discretion in this matter, we dismiss this
portion of the appeal.
Second, Smith contends that there was insufficient
evidence supporting the calculation of drug quantity in the
presentence report (“PSR”) and that it was improper to fail to
disclose the amount prior to his plea. However, the quantity in
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the PSR was based, in large part, on Smith’s own statements to
law enforcement. At sentencing, Smith admitted these statements
and abandoned any argument to the contrary. Moreover, he was
given a variance sentence based, in part, on his cooperation
with law enforcement. Because Smith did not make an affirmative
showing that the PSR’s calculation was inaccurate, the district
court was free to adopt the findings. United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990). Moreover, Smith’s timeliness
claim is meritless as he was informed at his Fed. R. Crim. P. 11
hearing that his Guidelines range had not yet been calculated
and could be different from any estimates by counsel.
In accordance with Anders, we have reviewed the entire
record in the case, and we find no meritorious issues for
appeal. Accordingly, we dismiss Smith’s claim that the district
court failed to depart and affirm Smith’s conviction and
sentence. This court requires that counsel inform Smith in
writing of his right to petition the Supreme Court of the United
States for further review. If Smith requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may motion this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Smith. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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