United States v. Jenkins , 102 F. App'x 285 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRANCE JENKINS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. Sol Blatt, Jr., Senior District
Judge. (CR-02-518)
Submitted: June 10, 2004 Decided: June 17, 2004
Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
N. Elliott Barnwell, Charleston, South Carolina, for Appellant. J.
Strom Thurmond, Jr., United States Attorney, Columbia, South
Carolina, Robert H. Bickerton, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Terrance Jenkins pled guilty to conspiracy to possess
with intent to distribute fifty grams or more of cocaine base. The
Government filed an information pursuant to 21 U.S.C. § 851(2000), seeking enhanced penalties based on Jenkins’ previous
felony drug offense. Jenkins was sentenced to the mandatory
minimum sentence of 240 months. See 28 U.S.C. § 841 (b)(1)(A)(2000
& Supp. 2003). On appeal, counsel has filed a brief under
Anders v. California, 386 U.S. 738 (1967), alleging that there are
no meritorious claims on appeal, but raising the following issues:
(1) whether the district court erred in its denial of an
evidentiary hearing on the issue of whether Jenkins provided
substantial assistance under U.S. Sentencing Guidelines Manual
§ 5K1.1 (2002), and (2) whether the district court erred in denying
Jenkins motion for a departure under USSG § 5K2.0 based on
childhood abuse. Jenkins has filed a pro se informal brief raising
three issues. For the reasons that follow, we affirm Jenkins’
conviction and sentence.
The Government was not obligated under its plea agreement
with Jenkins to move for a downward departure based on substantial
assistance. United States v. Snow, 234 F.3d 187, 190 (4th Cir.
2000). The district court found Jenkins breached the plea
agreement when he was untruthful and failed to pass polygraph
tests, and the Government did not refuse to make the motion for an
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unconstitutional motive. Wade v. United States, 504 U.S. 181,
185-86 (1992). The district court did not err in its refusal to
hold an evidentiary hearing to determine the extent of Jenkins’
assistance to the Government.
Jenkins contends that the district court erred by denying
his motion for downward departure under § 5K2.0. Because the
district court recognized that it had the authority to depart
downward from the sentencing guidelines but declined to do so, this
Court may not review its decision any further. See United
States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).
Turning to the claims raised in Jenkins’ pro se
supplemental brief, we find the sentencing claims baseless. The
sentence imposed was the statutory mandatory minimum. No
enhancement for obstruction of justice was applied. In addition,
the challenge to the district court’s finding of drug quantity in
light of the testimony offered at the sentencing hearing was not
clearly erroneous. See United States v. Sampson, 140 F.3d 585, 591
(4th Cir. 1998).
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal. Accordingly, we affirm. 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
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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
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