United States v. Fox

101 F. App'x 414

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4385

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

CHARLES MARSHALL FOX,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Charles H. Haden II, District Judge. (CR-02-255)

Submitted: June 24, 2004 Decided: June 29, 2004

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed in part, dismissed in part by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, United States Attorney, Joshua C. Hanks, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Charles M. Fox appeals from his thirty-seven-month

sentence imposed following his guilty plea to possession of a

firearm by a convicted felon. 18 U.S.C.A. §§ 922(g)(1), 924(a)(2)

(West 2000 & Supp. 2004). Fox’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 744 (1967), stating that there

were no meritorious issues for appeal, but addressing whether the

district court erred in denying Fox’s motion for a downward

departure in his sentence. Fox was informed of his right to file

a pro se brief, but has not done so. Because our review of the

record discloses no reversible error, we affirm in part and dismiss

in part.

We find that Fox’s guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Fed. R.

Crim. P. 11. Fox was properly advised as to his rights, the

offense charged, and the maximum sentence for the offense. The

court also determined that there was an independent factual basis

for the plea and that the plea was not coerced or influenced by any

promises. See North Carolina v. Alford, 400 U.S. 25, 31 (1970);

United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).

We find that the district court properly computed Fox’s

offense level and criminal history category and correctly

determined the applicable guideline range of thirty-seven to forty-

six months. The court’s imposition of a sentence within the

- 2 - properly calculated range is not reviewable. United States v.

Jones, 18 F.3d 1145, 1151 (4th Cir. 1994).

Fox challenges the court’s failure to depart based on his

claim that he possessed the majority of the firearms to avoid a

greater harm. Because the district court was aware of its

authority to depart and declined to do so, the decision not to

depart is not reviewable on appeal. See United States v. Bayerle,

898 F.2d 28, 30-31 (4th Cir. 1990). Accordingly, we dismiss this

portion of the appeal.

As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal. We therefore

affirm Fox’s conviction and 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

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 IN PART; DISMISSED IN PART

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