United States v. Foster

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4080
KEITH LEONARD FOSTER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
G. Ross Anderson, Jr., District Judge.
(CR-02-248)
Submitted: July 24, 2003
Decided: August 1, 2003
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
2 UNITED STATES v. FOSTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Keith Leonard Foster appeals his conviction based upon a written
plea agreement and sentence of charges on distribution and posses-
sion of cocaine and crack cocaine with intent to distribute, and con-
spiracy to distribute and to possess cocaine and crack cocaine with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
After conducting a thorough Fed. R. Crim. P. 11 colloquy, the district
court found Foster guilty, and sentenced him to 151 months’ impris-
onment and five years’ supervised release. Foster’s attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
claiming abuse of discretion in the district court’s denial of Foster’s
motion to withdraw his guilty plea, and error in the district court’s
failure to compel the government to file a downward departure
motion based on substantial assistance, but concluding that there are
no meritorious grounds for appeal. Foster was notified of his right to
file an additional brief, which he failed to do. In accordance with the
requirements of Anders, we have examined the entire record and find
no meritorious issues for appeal.
We find no merit to Foster’s specific claims on appeal. The district
court complied with the mandates of Fed. R. Crim. P. 11, and Foster
testified specifically during that hearing that the plea agreement,
which contained no provision or promise of a USSG § 5K1.1 motion
for downward departure for substantial assistance, reflected the entire
agreement between he and the government, and that there were no
promises made to him other than those promises outlined in his plea
agreement. The record reflects that Foster’s plea was knowing and
voluntarily entered into. Because Foster failed to present a fair and
just reason to withdraw his guilty plea, we find no abuse of discretion
by the district court in its failure to allow the withdrawal. United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
UNITED STATES v. FOSTER 3
Moreover, we find nothing in the record to substantiate Foster’s
claim that the government’s refusal to move for a downward depar-
ture on Foster’s behalf was based on any unconstitutional motive or
that it was not rationally related to a permissible government objec-
tive. See Wade v. United States, 504 U.S. 181, 185-86 (1992); United
States v. LeRose, 219 F.3d 335, 342 (4th Cir. 2000). Accordingly, we
affirm Foster’s conviction and sentence.
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. Coun-
sel’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 the decisional process.
AFFIRMED