United States v. Wallace ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4933
PHYLLIS WALLACE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4999
JOE LOUIS CRAWFORD,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-96-66)
Submitted: August 25, 1998
Decided: September 23, 1998
Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Randolph Marshall Lee, Charlotte, North Carolina; Leslie Carter
Rawls, Charlotte, North Carolina, for Appellants. Mark T. Calloway,
United States Attorney, Gretchen C.F. Shappert, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Phyllis Wallace and Joe Louis Crawford ("Appellants") pleaded
guilty to conspiracy to possess with the intent to distribute powder
cocaine and crack cocaine within 1000 feet of a school, in violation
of 21 U.S.C. §§ 846, 860 (1994). The district court sentenced Wallace
to seventy-seven months' imprisonment followed by three years'
supervised release. Crawford received 121 months' imprisonment fol-
lowed by ten years supervised release. Appellants appeal their sen-
tences. Appellants' attorneys have filed a joint brief in accordance
with Anders v. California, 386 U.S. 738 (1967), asserting prosecu-
torial misconduct and ineffective assistance of counsel.
Wallace's attorney asserts that the district court abused its discre-
tion by not departing further than it did under U.S. Sentencing Guide-
lines Manual § 5K1.1 (1997) ("USSG"). At sentencing, the
Government moved for a downward departure pursuant to USSG
§ 5K1.1 and 18 U.S.C. § 3553(e) (1994). The district court departed
from a calculated sentencing range of 188 to 235 months to seventy-
seven months.
A defendant may not appeal the extent of a downward departure
when the resulting sentence is within the statutory limits and below
the properly calculated sentencing guidelines range. See United States
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v. Hill, 70 F.3d 321, 323-24 (4th Cir. 1995). Moreover, when the sen-
tencing court has departed in the defendant's favor, 18 U.S.C. § 3742(1994) does not provide for an appeal from the sentence. Only the
government may appeal a downward departure. See 18 U.S.C.
§ 3742(b) (1994).
Wallace has filed a pro se supplemental brief. However, she does
not raise any substantive issues that would alter the outcome of this
appeal.
Crawford's attorney asserts prosecutorial misconduct in that the
Government failed to move for a downward departure pursuant to
USSG § 5K1.1. The decision to make a downward departure motion
is within the sole discretion of the government and is not reviewable
unless the government based its decision upon an unconstitutional
factor, such as race. See Wade v. United States , 504 U.S. 181, 185-87
(1992). There is no evidence that the Government's failure to move
for a departure was based on an unconstitutional motive. Rather, at
sentencing, the Government presented evidence that Crawford vio-
lated conditions of his pre-trial release. Crawford admitted to smoking
marijuana in violation of the terms of the pre-trial release. Crawford's
plea agreement stated that even assuming Crawford provided substan-
tial assistance, violation of the pre-trial release terms voided the
agreement. Thus, this claim is without merit.
Crawford's attorney next asserts that Crawford received ineffective
assistance of counsel. A claim of ineffective assistance of counsel is
not properly raised on direct appeal unless the record discloses con-
clusively that defense counsel was ineffective. See United States v.
Fisher, 477 F.2d 300, 302 (4th Cir. 1973): United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991). The record establishes that at
the plea hearing Crawford stated that he was satisfied with his attor-
ney's services and failed to raise any objections concerning his attor-
ney's performance throughout both the plea hearing and at
sentencing. Because the record does not conclusively disclose that
Crawford was denied effective assistance of counsel, the claim should
be raised in a motion filed pursuant to 28 U.S.C.A.§ 2255 (West
Supp. 1998). We therefore affirm both Wallace's and Crawford's sen-
tences.
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In accordance with the requirements of Anders , we have examined
the entire record in each case and find no meritorious issues for
appeal. This court requires that each counsel inform his client, in writ-
ing, of his or 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 represen-
tation. 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
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