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United States v. Scott , 20 F. App'x 147 ( 2001 )


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  •                            UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 01-4137
TROY SCOTT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CR-00-705)
Submitted: September 20, 2001
Decided: September 28, 2001
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. Sean Kittrell, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. SCOTT
OPINION
PER CURIAM:
Troy Scott appeals his conviction entered upon his guilty plea to
escape from federal custody in violation of
    18 U.S.C. § 751
     (1994).
Scott’s attorney has filed a brief in accordance with Anders v. Califor-
nia,
    386 U.S. 738
     (1967), addressing whether the district court erred
in denying Scott’s motion for downward departure, but concluding
that there are no meritorious issues for appeal. Scott has filed a sup-
plemental pro se brief in which he asserts that he was denied equal
protection because his co-defendant received a lesser sentence for the
same offense. We affirm in part and dismiss in part.
At sentencing, Scott requested a downward departure on the
ground that his status as a career offender overstated the seriousness
of his criminal history. The district court considered Scott’s argu-
ments, recognized its authority to depart, and elected not to depart.
Where the sentencing court was aware of its authority to depart and
simply declined to do so, we lack authority to review its decision.
United v. Edwards,
    188 F.3d 230
    , 238-39 (4th Cir. 1999), cert.
denied,
    528 U.S. 1130
     (2000); United States v. Bayerle,
    898 F.2d 28
    ,
31 (4th Cir. 1990). We therefore dismiss this portion of the appeal.
In his supplemental pro se brief, Scott argues that the disparity in
sentences imposed upon him and his co-defendant violated the Equal
Protection Clause. A sentencing court need not consider the sentence
of a co-defendant when imposing sentence. United States v. Foutz,
    865 F.2d 617
    , 621 (4th Cir. 1989); United States v. Truelove,
    482 F.2d 1361
    , 1361-62 (4th Cir. 1973). Moreover, disparity of sentences
among co-defendants is not a ground for downward departure absent
prosecutorial misconduct. United States v. Fonville,
    5 F.3d 781
    , 783-
84 (4th Cir. 1993). There is no suggestion of misconduct here.
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. Therefore, we affirm Scott’s 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
UNITED STATES v. SCOTT                      3
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 ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED IN PART; AFFIRMED IN PART