United States v. Powell , 62 F. App'x 543 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4811
KENNETH O’BRIAN POWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-99-190)
Submitted: April 25, 2003
Decided: May 8, 2003
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Anne
Magee Tompkins, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. POWELL
OPINION
PER CURIAM:
Kenneth O’Brian Powell appeals the district court’s judgment sen-
tencing him to 240 months imprisonment and sixty months imprison-
ment, to run concurrently, for violations of 18 U.S.C. § 1201 (2000)
and 18 U.S.C. § 2262 (2000), respectively. Powell’s attorney has filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Although counsel states that there are no meritorious issues for
appeal, he challenges the extent of the district court’s downward
departure from the sentencing guidelines. Neither the Government nor
Powell filed a brief. In accordance with Anders, we have considered
the brief and examined the entire record for meritorious issues.
On appeal, Powell’s counsel argues that the extent of the district
court’s downward departure from the sentencing guidelines is inade-
quate. We do not have jurisdiction to review the extent of a district
court’s downward departure unless such departure results in a sen-
tence that violates the law or is an incorrect application of the sen-
tencing guidelines. See United States v. Hill, 70 F.3d 321, 324 (4th
Cir. 1995). The district court reduced Powell’s Criminal History Cate-
gory from VI to V, thus placing him in a sentencing range of 235 to
293 months imprisonment. The statutory maximum penalty is life
imprisonment pursuant to § 1201 and five years imprisonment pursu-
ant to § 2262. Thus, Powell’s concurrent sentences of 240 months and
sixty months imprisonment do not exceed the statutory maximum
penalties therefor, and they fall clearly within the low end of the
applicable guideline range. Therefore, because his sentence is neither
a violation of the law nor the result of an incorrect application of the
guidelines, we do not have jurisdiction to review the extent of the dis-
trict court’s downward departure.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm the district court’s judgment. 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 peti-
tion would be frivolous, then counsel may move in this court for leave
UNITED STATES v. POWELL 3
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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED