United States v. Tucker ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5657
JOYCELYN GWINNETTE TUCKER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-94-875)
Submitted: December 19, 1996
Decided: January 2, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
C. Timothy Sullivan, Greenville, South Carolina, for Appellant.
David Calhoun Stephens, Assistant United States Attorney, Green-
ville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joycelyn Gwinnette Tucker appeals from her conviction and sen-
tence for possession with intent to distribute cocaine base in violation
of 21 U.S.C.A. § 841(a)(1), (b)(2)(B) (West 1981 & Supp. 1996).
Tucker's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), addressing whether the district court
complied with the requirements of Fed. R. Crim. P. 11 in accepting
Tucker's guilty plea and whether the court erred in denying Tucker's
request for a departure below the guideline range. Counsel asserted
that there are no meritorious issues for appeal. Tucker was notified of
her right to file an additional brief, but has not done so.
Pursuant to an oral plea agreement, Tucker pled guilty to posses-
sion with intent to distribute cocaine base. The government stipulated
that Tucker would be held responsible for 25 grams of crack cocaine
and that Tucker should qualify for a reduction in offense level
because of her role as a minimal participant. USSG 3B1.2(a).* The
district court accepted this stipulation.
In accordance with the requirements of Anders , we have examined
the entire record in this case and find no meritorious issues for appeal.
The district court properly conducted the Rule 11 hearing and ensured
that Tucker knowingly and voluntarily entered her guilty plea. See
Boykin v. Alabama, 395 U.S. 238, 243-44 & nn.5-6 (1969). Further,
the government recited the factual basis for the plea, Tucker agreed
to the recitation of facts, and the court determined that the facts were
sufficient to prove all of the essential elements of possession with
intent to distribute crack cocaine. See Fed. R. Crim. P. 11(f); United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991), cert. denied,
503 U.S. 997 (1992).
Counsel also raised an issue concerning the computation of Tuck-
er's criminal history category and the district court's refusal to depart
below the sentencing guideline range. We find that Tucker's criminal
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994). Tucker was sentenced on August 17, 1995.
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history was correctly determined. See USSG§§ 4A1.1, 4A1.2. Fur-
ther, the district court's refusal to depart is not reviewable by this
court unless the district court "mistakenly believed that it lacked the
authority to depart." United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir.), cert. denied, 498 U.S. 819 (1990). It is clear from the record
that the district court was aware of its authority to depart and declined
to do so. Therefore, we cannot review the court's refusal to depart
below the guideline range. Because Tucker's plea was knowing and
voluntary and accepted in accordance with Fed. R. Crim. P. 11 and
her sentence was the result of a proper application of the sentencing
guidelines, we affirm Tucker's conviction and sentence.
This court requires that counsel inform his client, in writing, of her
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. Coun-
sel'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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