United States v. Swann ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-4490
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RONALD GENE SWANN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
District Judge. (CR-96-172)
Submitted: August 31, 1998 Decided: October 7, 1998
Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Robert
M. Hamilton, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald Gene Swann appeals his conviction and sentence for
possession with intent to distribute crack cocaine. See 21 U.S.C.
§ 841(a)(1) (1994). Swann noted a timely appeal and his attorney
filed a brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967), in which he represents that there are no arguable issues of
merit in this appeal. Nonetheless, at Swann’s request, counsel sug-
gested that the district court erred in the extent of its downward
departure under the U.S. Sentencing Guidelines Manual § 5K1.1 (Nov.
1996). Despite being informed of his right to do so, Swann failed
to file a supplemental brief. Because we find the one issue raised
in this appeal to be without merit and can discern no other error
on this record, we affirm Swann’s conviction and sentence.
Despite the fact that Swann was subject to a statutory minimum
sentence of ten years, the Government filed a motion for a downward
departure based on Swann’s substantial assistance. See USSG
§ 5K1.1. On that motion, the district court imposed a term of
imprisonment of only 49 months, less than half of the statutory
minimum. See United States v. Patterson, 38 F.3d 139, 146 n.8 (4th
Cir. 1994). Despite this significant departure, Swann takes issue
with the extent of the downward departure, contending that it
should have been greater than 71 months he received. This court
lacks jurisdiction to consider the extent of the district court’s
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departure. See United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995). As a result, we must dismiss this appeal.
As required by Anders, we have independently reviewed the
entire record and all pertinent documents. We have considered all
possible issues presented by this record and concluded that there
are no nonfrivolous grounds for this appeal. Pursuant to the plan
adopted by the Fourth Circuit Judicial Council in implementation of
the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (1994), this
court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court for further review. If re-
quested by his client to do so, counsel should prepare a timely
petition for writ of certiorari. Consequently, counsel’s motion to
withdraw is denied. We dispense with oral argument because the
facts and legal contentions are adequately presented in the mate-
rials before the Court and argument would not aid the decisional
process.
DISMISSED
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