United States v. Horton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4404
BRYANT KEITH HORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-99-170)
Submitted: January 31, 2001
Decided: February 20, 2001
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher F. Cowan, COWAN, NORTH & LAFRATTA, L.L.P.,
Richmond, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, Darryl J. Mitchell, Assistant United States Attorney, Nor-
folk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HORTON
OPINION
PER CURIAM:
Bryant Keith Horton appeals his conviction and sentence for pos-
session of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (1994). Horton pled not guilty to the charge
but was convicted by a jury and subsequently sentenced to fifty-two
months incarceration and three years of supervised release. Horton’s
counsel has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967). Horton filed a pro se supplemental brief. Three
issues are presented.
First, Horton challenges the sufficiency of the evidence to support
his conviction. The Government presented evidence establishing that
Horton was a convicted felon, a police officer saw him throw a fire-
arm while running from law enforcement officers, and the firearm
recovered from the scene contained Horton’s fingerprint. Viewing the
evidence in the light most favorable to the Government, we find this
was sufficient to convict Horton. Glasser v. United States, 315 U.S.
60, 80 (1942).
Second, Horton challenges the district court’s denial of his motion
for downward departure. Since the district court was aware of its
authority to depart, but chose to deny Horton’s motion in the exercise
of its discretion, this issue is not subject to appellate review. United
States v. Burgos, 94 F.3d 849, 876 (4th Cir. 1996); United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
Third, Horton asserts he was never read his rights when taken into
custody. Since Horton made no statements upon arrest, and since the
Government never sought to use anything Horton said to present its
case, there was no violation of Horton’s rights. Miranda v. Arizona,
384 U.S. 436 (1966).
In accordance with Anders, we have reviewed the entire record in
this case and find no other meritorious issues for appeal. We therefore
affirm Horton’s conviction and sentence. This court requires that
counsel inform his client, in writing, of his right to petition the
UNITED STATES v. HORTON 3
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED