United States v. Odom

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4414
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH WAYNE ODOM, a/k/a Kenny,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-559)
Submitted: December 14, 2006 Decided: December 18, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry M. Anderson, Jr., ANDERSON LAW FIRM, PA, Florence, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Wayne Odom appeals his conviction and 120-month
sentence pursuant to his guilty pleas to one count of conspiracy to
possess with intent to distribute marijuana and five grams or more
of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A) (2000), and one count of using a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A) (2000).
Counsel for Odom has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (2000), in which he states there are no
meritorious issues for appeal, but presenting one issue for our
review. Counsel suggests the district court erred in denying
Odom’s motion for a downward departure due to Odom’s extraordinary
physical condition. See U.S. Sentencing Guidelines Manual § 5H1.4
(2003).
A district court’s decision not to depart from the
sentencing guidelines is not subject to appellate review unless the
refusal to depart is based on the mistaken belief that the court
lacked jurisdiction to depart. United States v. Quinn, 359 F.3d
666, 682 (4th Cir. 2004) (citing United States v. Bayerle, 898 F.2d
28, 30-31 (4th Cir. 1990)); see also United States v. Cooper, 437
F.3d 324, 333 (3d Cir. 2006) (collecting cases adopting this rule
after United States v. Booker, 543 U.S. 220 (2005)). Here, the
district court recognized its authority to depart but found, under
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the circumstances of Odom’s case, that departure was not warranted.
Thus, this claim is not subject to appellate review. Quinn, 359
F.3d at 682.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Odom’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 his
counsel believes that such a petition 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 contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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