United States v. Love , 217 F. App'x 226 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BILLY RAY LOVE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:05-cr-00024-1)
Submitted: January 17, 2007 Decided: February 14, 2007
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
M. Victoria Jayne, Hickory, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Billy Ray Love appeals his conviction for manufacturing
and possessing with intent to distribute more than 500 grams of
methamphetamine, 21 U.S.C.A. § 841 (West 1999 & Supp. 2006), and
his sentence of ninety-seven months imprisonment. Love’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), raising one issue but stating that, in her view, there are
no meritorious issues for appeal. Love has been informed of his
right to file a pro se supplemental brief, but has not filed a
brief. We affirm.*
After his arrest, Love admitted that he had been making
methamphetamine for several months, pled guilty to the above
offense, and stipulated that fifty to 150 grams of methamphetamine
(actual) was reasonably foreseeable to him. Love made no
objections to the guideline range calculated in the presentence
report, although he disagreed with certain other information
contained in the report. After considering Love’s clarifications,
the advisory guideline range, and the factors set out in 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), the court imposed the
minimum guideline sentence of ninety-seven months, and ordered Love
*
Although in his plea agreement Love waived his appeal rights,
we have declined to consider a defendant’s appeal waiver where the
government fails to assert the waiver. See United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005). In this case, the government
has not moved to dismiss Love’s appeal.
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to pay $1,549.41 in restitution to reimburse the Drug Enforcement
Administration for clean-up costs at Love’s residence.
On appeal, counsel suggests that the district court erred
in failing to depart for substantial assistance. Love allegedly
cooperated with the government while he was on pretrial release,
but the government did not request a departure pursuant to U.S.
Sentencing Guidelines Manual § 5K1.1, p.s. (2005), and the plea
agreement provided that the government had sole discretion to
determine whether any assistance Love might provide was
substantial. A government motion is necessary before the
sentencing court may depart for substantial assistance. 18
U.S.C.A. § 3553(e) (West 2000 & Supp. 2006); USSG § 5K1.1. Thus,
the court did not err in failing to depart sua sponte on this
ground. Moreover, Love does not allege that the government’s
motive for withholding a § 5K1.1 motion was unconstitutional. See
Wade v. United States, 504 U.S. 181, 186 (1992) (holding that
defendant must make substantial threshold showing of improper
motive to obtain review of government’s decision not to move for
substantial assistance departure). Love’s ninety-seven-month
sentence was within the correctly calculated guideline range of
97-121 months, and was thus reasonable. United States v. Green,
436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
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the district court’s judgment. This court requires that counsel
inform her client, in writing, of his right to petition the Supreme
Court of the United States for further review. If the client
requests that such 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. 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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