United States v. William E. Coleman , 37 F.3d 1496 ( 1994 )

37 F.3d 1496

74 A.F.T.R.2d 94-6752

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
William E. COLEMAN, Defendant-Appellant.

No. 94-5449.

United States Court of Appeals, Fourth Circuit.

Submitted: Sept. 13, 1994.
Decided: Oct. 21, 1994.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, District Judge. (CR-93-76)

David M. Hammer, HAMMER, FERRETTI & SCHIAVONI, Martinsburg, WV, for Appellant. William D. Wilmoth, United States Attorney, Sherry L. Muncy, Assistant United States Attorney, Elkins, WV, for Appellee.

N.D.W.Va.

DISMISSED.

Before WIDENER and MURNAGHAN, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PER CURIAM:

1

William Coleman appeals from his sentence imposed upon his conviction for income tax evasion in violation of 26 U.S.C.A. Sec. 7201 (West 1989). His counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), discussing the issue of whether the district court erred in refusing to depart downward from the sentencing guideline range based on Coleman's supposed single act of aberrant behavior. Coleman was advised of his right to file a supplemental brief but has not done so. We dismiss the appeal.

2

The only issue discussed in the Anders brief is the refusal to depart. Such an issue is not reviewable on appeal so long as the district court realized it had the authority to depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). The district court realized its authority to depart but refused to do so because it found Coleman's conduct was not a single act of aberrant behavior as this Court has interpreted that ground for departure. See United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991). Therefore, we decline to review the propriety of the refusal to depart.

3

In accordance with the requirements of Anders, we have examined the entire record in this case and find no other meritorious issues for appeal. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. Sec. 3006A), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.

4

We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.