United States v. Hamilton

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4552
JOHN P. HAMILTON, a/k/a Majestick,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-95-174)
Submitted: April 7, 1998
Decided: April 23, 1998
Before MURNAGHAN and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William S. Winfrey, II, Princeton, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, John C. Parr, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John P. Hamilton pleaded guilty to engaging in a continuing crimi-
nal enterprise to distribute cocaine, cocaine base, and hydromorphone
in violation of 21 U.S.C. § 848 (1994). The court sentenced Hamilton
to 360 months' incarceration and five years supervised release, and
the court ordered him to pay a $10,000 fine and a $50 special assess-
ment. Hamilton appeals his sentence. Hamilton's attorney filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), chal-
lenging the district court's denial of Hamilton's motion for downward
departure, but asserting that, in his view, there are no meritorious
grounds for appeal. Hamilton was informed of his right to file a pro
se supplemental brief, which he failed to file. Because we find that
the district court's denial of the motion for downward departure is not
reviewable, we affirm.
To the extent that Hamilton contends that the district court erred in
refusing to grant his motion for downward departure based upon his
age of twenty-eight, the fact that his co-defendants received a lesser
sentence, and his cooperation with the Government after the entry of
his guilty plea, we find his claim unavailing. The denial of a request
for a downward departure is reviewable only if the district court mis-
takenly believed that it lacked the authority to depart. See United
States v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992). The
record reflects that the district court was aware of its authority to
depart but chose not to depart after considering the statements of
Hamilton and counsel for both parties. Therefore, Hamilton's sen-
tence within the guidelines range is not reviewable. See Underwood,
970 F.2d at 1338.
In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Accord-
ingly, Hamilton's conviction and sentence are affirmed. This court
requires that counsel inform his client, in writing, of his right to peti-
tion 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
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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 the decisional process.
AFFIRMED
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