United States v. Foster , 31 F. App'x 289 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4568
SHAWN MICHAEL FOSTER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-01-44)
Submitted: March 21, 2002
Decided: March 29, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael R. Cline, MICHAEL R. CLINE LAW OFFICE, Charleston,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
Steven I. Loew, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FOSTER
OPINION
PER CURIAM:
Shawn Michael Foster pled guilty to one count of possession of a
firearm by a felon, in violation of 18 U.S.C.A. §§ 922(g)(1) &
924(a)(2) (West 2000). He appeals his sentence. Foster’s attorney has
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), alleging that the Government should have made a motion for
a downward departure under Fed. R. Crim. P. 35(b) based upon Fos-
ter’s assistance to the Government. Foster has also filed a pro se sup-
plemental brief raising sentencing issues. We affirm.
This court has held that a departure on the grounds of substantial
assistance to the government first requires that the government file a
motion for the court to depart. See United States v. Schaefer, 120 F.3d
505, 508 (4th Cir. 1997). The Supreme Court held in Wade v. United
States, 504 U.S. 181 (1992), that district courts may review a prosecu-
tor’s refusal to file a substantial assistance motion to determine
whether the refusal is based on an unconstitutional motive. Id. at 185-
86. In order to invoke this review, however, a defendant must do
more than make "generalized allegations of improper motive," he
must make a "substantial threshold showing." Id. at 186. A request for
downward departure was not presented to the district court by either
party in this case, and our review of the record discloses no evidence
that the failure of the Government to raise the issue of substantial
assistance was based upon an improper motive.
Foster raises two issues related to sentencing in his supplemental
brief. He argues that he should not have received a one-point
enhancement for possession of an additional two firearms, and two
points for possessing stolen firearms, because these allegations were
not contained in the indictment and proven beyond a reasonable
doubt. Because these are sentencing factors and not elements of the
offense required to be charged in the indictment there is no error. See
United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000), cert.
denied, 532 U.S. 937 (2001).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. Therefore,
UNITED STATES v. FOSTER 3
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 peti-
tion 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED