UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4124
GARRY JERMAINE PURVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-164)
Submitted: August 16, 2002
Decided: September 23, 2002
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
C. Gordon McBride, MCBRIDE LAW FIRM, Hartsville, South Caro-
lina, for Appellant. William Earl Day, II, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PURVIS
OPINION
PER CURIAM:
Garry Jermaine Purvis appeals the 183-month sentence imposed by
the district court after this case was remanded for resentencing in light
of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We affirm the
sentence.
In 1999, Purvis pled guilty to participating in a conspiracy to pos-
sess with intent to distribute a quantity of cocaine, crack, and heroin,
21 U.S.C. § 846 (2000), and was sentenced to a term of 292 months
imprisonment. Although the indictment did not charge a specific
threshold quantity of drugs, Purvis stipulated in his plea agreement
that he was involved with 1.5 kilograms of crack. In Purvis’ first
appeal, we found that his sentence was plainly erroneous under
Apprendi, 530 U.S. at 490, and United States v. Cotton, 261 F.3d 397,
405-07 (4th Cir. 2001), rev’d, 122 S. Ct. 1781 (2002), and remanded
for resentencing to a term of no more than 240 months imprisonment.
See United States v. Purvis, No. 99-4729 (4th Cir. Dec. 10, 2001)
(unpublished).
While Purvis’ appeal was pending, his sentence was reduced by
fifty-seven months to a term of 235 months imprisonment upon the
government’s motion for sentence reduction for substantial assistance
pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure.
On remand, at the resentencing hearing, the district court vacated the
two previous judgment orders, imposed a sentence of 240 months,
and reduced that sentence by fifty-seven months to achieve the sen-
tence that Purvis would have received had he been sentenced initially
in accordance with Apprendi and then received the Rule 35 reduction.
The court rejected Purvis’ request for a further departure to give him
credit for acceptance of responsibility.
Purvis’ attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), raising two issues as potentially meritorious, but
stating that, in his view, there are no meritorious grounds for appeal.
Purvis has been notified of his right to file a pro se supplemental
brief, but has not filed a brief.
UNITED STATES v. PURVIS 3
Purvis argues that he was penalized for the government’s failure to
charge properly all the elements of the offense and that the district
court should have departed further to give him the benefit of his
acceptance of responsibility. However, the district court’s decision
not to depart further on that ground is not reviewable. United States
v. Patterson, 38 F.3d 139, 146 (4th Cir. 1994) (holding "district
court’s refusal to depart downward from the applicable sentencing
guideline range is not appealable by the defendant").
We also reject Purvis’ contention that the district court lacked juris-
diction to convict or sentence him because the indictment failed to
charge an essential element of his offense. The indictment properly
charged an offense, Purvis was convicted of that offense, and the sen-
tence he ultimately received is within the statutory range for that
offense. See United States v. Promise, 255 F.3d 150, 160 (4th Cir.
2001) (en banc) (finding indictment sufficient where it charged defen-
dant with conspiracy to possess with intent to distribute unspecified
quantities of drugs), cert. denied, 122 S. Ct. 2296 (2002).
In accordance with the requirements of Anders, we have examined
the entire record and find no meritorious issues for appeal. We there-
fore affirm the conviction and sentence. This court requires that coun-
sel 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 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