United States v. St. Germain ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4316
EVA MARIE ST. GERMAIN, a/k/a Eve
Speir,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-203-P)
Submitted: December 19, 1996
Decided: January 6, 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Affirmed by unpublished per curiam opinion.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
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, H. Thomas Church, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Eva Marie St. Germain pled guilty to conspiracy to possess cocaine
with intent to distribute, 21 U.S.C.A. § 846 (West Supp. 1996). The
district court departed below the 10-year mandatory minimum sen-
tence on the government's motion under USSG § 5K1.1,* and sen-
tenced St. Germain to a term of 72 months. St. Germain's counsel has
filed a brief in accordance with Anders v. California, 386 U.S. 738(1967), raising two issues but stating that, in her view, there are no
meritorious grounds for appeal. St. Germain was notified of her right
to file a pro se supplemental brief, but has not filed a brief.
St. Germain's counsel suggests that the district court erred in
departing only to 72 months because some of her co-defendants,
whom she describes as more culpable, received lower sentences.
However, appellate review of the extent of a downward departure is
not available to a defendant unless the departure resulted in a sentence
imposed in violation of law or resulted from an incorrect application
of the guidelines. United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995). We discern no basis for review of the extent of the departure
in this case.
Counsel also suggests that St. Germain received ineffective assis-
tance of counsel in connection with her guilty plea because her lawyer
did not obtain a written plea agreement. This claim was raised in St.
Germain's previous § 2255 motion and found to be without merit.
In accordance with Anders, we have examined the entire record in
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*United States Sentencing Commission, Guidelines Manual (Nov.
1992). St. Germain was sentenced in July 1993. Her attorney did not note
an appeal. St. Germain's right to appeal was reinstated after she filed a
28 U.S.C. § 2255 (1994) motion the following year.
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this case and find no meritorious issues for appeal. We therefore
affirm the conviction and sentence. We deny counsel's motion to
withdraw at this time. This court requires that counsel inform her cli-
ent, 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 repre-
sentation. 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 record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
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