19 F3d 1430 United States v. L Kelly

19 F.3d 1430

UNITED STATES of America, Plaintiff-Appellee,
v.
Harold L. KELLY, Defendant-Appellant.

No. 92-5563.

United States Court of Appeals, Fourth Circuit.

Submitted March 3, 1993.
Decided March 31, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (CR-92-7)

Parks N. Small, Fed. Public Defender, Columbia, SC, for appellant.

John S. Simmons, U.S. Atty., Eric W. Ruschky, Asst. U.S. Atty., Columbia, SC, for appellee.

D.S.C.

AFFIRMED.

Before WIDENER, PHILLIPS, and WILKINS, Circuit Judges.

OPINION

PER CURIAM:


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1

Harold L. Kelly appeals the judgment and sentence imposed by the district court following his plea of guilty to charges of possession of crack cocaine in violation of 21 U.S.C.A. Secs. 841(a)(1), 841(b)(1)(C) (West 1981 & Supp.1994), and possession of a firearm in violation of 18 U.S.C.A. Sec. 924(c) (West Supp.1994). Finding no error, we affirm.

2

Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel raises a single issue concerning the district court's failure to depart further downward in sentencing Kelly. Kelly was notified of his right to file an additional brief, but failed to file anything with the Court.

3

Pursuant to his plea agreement, Kelly cooperated fully with the Government in providing information on several defendants. At his sentencing hearing, the Government explained what assistance Kelly had provided and recommended a downward departure. The district court granted the downward departure pursuant to 18 U.S.C.A. Sec. 3553(e) (West Supp.1994). Kelly received a sentence within the guidelines sentencing range for the drug charge, and no sentence for the firearm charge.

4

In this appeal, Kelly contends that the district court failed to make a sufficient departure. This Court will not consider this claim because the extent of a departure below the guideline range for substantial assistance is not reviewable on appeal. See United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); United States v. Bayerle, 898 F.2d 28, 30 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

5

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 conclude that there are no nonfrivolous grounds for appeal. Accordingly, Kelly's conviction and sentence are affirmed.

6

Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C. Sec. 3006A (1988)), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.

7

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.


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8

AFFIRMED.