United States v. Davis ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4783
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARQUIS DAVIS, a/k/a Kiser, a/k/a Bear, a/k/a
MK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-02-69)
Submitted: February 19, 2004 Decided: February 24, 2004
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric B. Snyder, BAILEY & GLASSER, L.L.P., Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Miller A. Bushong III, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marquis Davis appeals his conviction and 168-month
sentence imposed pursuant to a guilty plea to one count of
distribution of more than five grams of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2000). Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
several issues but stating that, in his view, there are no
meritorious grounds for appeal. Davis was informed of his right to
file a pro se supplemental brief but did not do so. We affirm.
Counsel questions whether the district court violated the
rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), in
accepting Davis’ guilty plea and in sentencing Davis. Davis was
charged with distribution of more than five grams of crack, which
triggered the enhanced penalty provisions in § 841(b)(1)(B). At
the plea hearing conducted pursuant to Fed. R. Crim. P. 11, the
court informed Davis of the minimum and maximum penalties to which
he was subject, and he stated that he understood. In addition,
Davis’ 168-month sentence falls within the forty-year statutory
maximum and, therefore, does not implicate Apprendi. See United
States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en banc);
United States v. Kinter, 235 F.3d 192, 199-202 (4th Cir. 2000).
Next, counsel questions whether the district court erred
in applying a two-level enhancement pursuant to U.S. Sentencing
Guidelines Manual § 3B1.1(c) (2001), based upon Davis’ role in the
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offense. We find no plain error in the application of the
enhancement given that the record supports it and, at sentencing,
Davis agreed that the enhancement applied. See United States v.
Osborne, 345 F.3d 281, 284 (4th Cir. 2003) (discussing standard of
review).
Finally, counsel suggests that the district court should
have departed downward based upon Davis’ substantial assistance in
the absence of a government motion. Generally, a departure for
substantial assistance may not be made absent a motion by the
government. United States v. Schaefer, 120 F.3d 505, 508 (4th Cir.
1997). Because the government was not obligated to make such a
motion in its plea agreement with Davis, see United States v. Snow,
234 F.3d 187, 190 (4th Cir. 2000), and there is no evidence that
the government refused to make the motion based upon an improper
motive, see Wade v. United States, 504 U.S. 181, 185-87 (1992), we
find no error in the district court’s decision not to depart.
As required by Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Davis’ 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. Counsel’s motion must
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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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