United States v. Fox , 101 F. App'x 414 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES MARSHALL FOX,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Charles H. Haden II,
District Judge. (CR-02-255)
Submitted: June 24, 2004 Decided: June 29, 2004
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part, dismissed in part by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Joshua C. Hanks,
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Unpublished opinions are not binding precedent in this circuit.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:
Charles M. Fox appeals from his thirty-seven-month
sentence imposed following his guilty plea to possession of a
firearm by a convicted felon. 18 U.S.C.A. §§ 922(g)(1), 924(a)(2)
(West 2000 & Supp. 2004). Fox’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967), stating that there
were no meritorious issues for appeal, but addressing whether the
district court erred in denying Fox’s motion for a downward
departure in his sentence. Fox was informed of his right to file
a pro se brief, but has not done so. Because our review of the
record discloses no reversible error, we affirm in part and dismiss
in part.
We find that Fox’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. Fox was properly advised as to his rights, the
offense charged, and the maximum sentence for the offense. The
court also determined that there was an independent factual basis
for the plea and that the plea was not coerced or influenced by any
promises. See North Carolina v. Alford, 400 U.S. 25, 31 (1970);
United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
We find that the district court properly computed Fox’s
offense level and criminal history category and correctly
determined the applicable guideline range of thirty-seven to forty-
six months. The court’s imposition of a sentence within the
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properly calculated range is not reviewable. United States v.
Jones, 18 F.3d 1145, 1151 (4th Cir. 1994).
Fox challenges the court’s failure to depart based on his
claim that he possessed the majority of the firearms to avoid a
greater harm. Because the district court was aware of its
authority to depart and declined to do so, the decision not to
depart is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 30-31 (4th Cir. 1990). Accordingly, we dismiss this
portion of the appeal.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Fox’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 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 IN PART;
DISMISSED IN PART
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