UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4931
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN HENRY JENNINGS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-03-103)
Submitted: June 14, 2004 Decided: July 29, 2004
Before WIDENER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
Christopher J. Moran, Columbia, South Carolina, for Appellant.
William Kenneth Witherspoon, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
John Henry Jennings, Jr., appeals his conviction and
sentence, after pleading guilty to distributing and possession with
intent to distribute five grams or more of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2000) (count one), and
possession of a firearm in furtherance of, and using and carrying
a firearm during and in relation to, a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2000) (count two). The
presentence investigation report (“PSR”) recommended that Jennings
be sentenced as a career offender. After denying Jennings’s motion
to withdraw his guilty plea, the district court adopted the PSR’s
findings and sentenced Jennings to 262 months of imprisonment on
count one and sixty months of imprisonment on count two, to be
served consecutively. Jennings received eight years of supervised
release on count one and five years for count two, to run
concurrently.
Jennings’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but raising three issues: (1)
whether the district court erred in denying Jennings’s motion to
withdraw his guilty plea; (2) whether the district court erred in
denying Jennings’s motion to depart downward based on an overstated
criminal history from his career offender status; and (3) whether
the district court erred in sentencing Jennings as a career
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offender. Jennings reasserts issues one and three in his pro se
supplemental brief and also claims that the district court erred in
calculating his criminal history points and that the indictment was
invalid.
The district court’s denial of a motion to withdraw a
guilty plea is reviewed for an abuse of discretion. United States
v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does
not have an absolute right to withdraw a guilty plea. United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). Rather, the
defendant bears the burden of demonstrating that a “fair and just
reason” supports his request to withdraw his plea. Id. Because
Jennings failed to meet this burden, we conclude that the district
court did not abuse its discretion in denying Jennings’s motion to
withdraw his guilty plea. See United States v. Lambey, 974 F.2d
1389 (4th Cir. 1992) (en banc).
Both Jennings and counsel raise the issue of whether the
district court erred in sentencing Jennings as a career offender.
Jennings maintains that his prior state conviction for attempted
escape was not a felony, while counsel maintains that the crime of
attempted escape is not a crime of violence. See U.S. Sentencing
Guidelines Manual § 4B1.1 (2002). The district court’s factual
findings are reviewed for clear error, and its application of the
sentencing guidelines is reviewed de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Because the crime of
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attempted escape is punishable by imprisonment for a term exceeding
one year and involves conduct that presents a serious potential
risk of physical injury to another, we conclude that the district
court did not err in sentencing Jennings as a career offender. See
S.C. Code Ann. § 24-13-410 (Law. Co-op. 1991); United States v.
Dickerson, 77 F.3d 774 (4th Cir. 1996).
Counsel also raises the issue of whether the district
court erred in denying Jennings’s request for a downward departure
based on an overstated criminal history from his career offender
status. A sentencing court’s decision not to depart is not
reviewable unless the court’s decision is based on a mistaken view
that it lacks authority to do so. United States v. Brock, 108 F.3d
31, 33 (4th Cir. 1997). We dismiss this claim because the district
court’s comments during sentencing reflected that the court
understood its ability to depart downward based on an overstated
criminal history.
Finally, Jennings claims in his pro se supplemental brief
that the district court incorrectly calculated his criminal history
points, the indictment was invalid because it was amended by the
Government without being approved by the grand jury, and the
indictment was never signed by the grand jury foreperson. We need
not review the district court’s calculation of Jennings’s criminal
history points because the district court properly sentenced
Jennings as a career offender. Further, a voluntary guilty plea
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normally forecloses claims based on non-jurisdictional pre-plea
defects. See Tollett v. Henderson, 411 U.S. 258, 266-67 (1973).
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we deny Jennings’s
motion for appointment of new counsel and affirm Jennings’s
conviction. We also affirm Jennings’s sentence but dismiss the
portion of the appeal that challenges the district court’s decision
not to depart. 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 AND DISMISSED IN PART
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