UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4749
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTHUR DELEON WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-146)
Submitted: July 18, 2005 Decided: August 15, 2005
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Gordon McBride, Hartsville, South Carolina, for Appellant. Rose
Mary Parham, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Arthur Deleon Wilson appeals a 192-month sentence imposed
after he pleaded guilty pursuant to a plea agreement to one count
of possession with intent to distribute five grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2000);
and one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a), 924(e) (2000).
Counsel for Wilson filed an Anders1 brief, in which he states that
there are no meritorious issues for appeal, but suggests that the
district court erred in overruling Wilson’s objection to the
Government’s failure to move for a downward departure.2 Wilson was
advised of his right to file a pro se supplemental brief, but did
not file a brief.
A departure on the ground of substantial assistance to
the Government first requires that the Government file a motion for
the court to depart. United States v. Schaefer, 120 F.3d 505, 508
(4th Cir. 1997). The district court may review a prosecutor’s
refusal to file a substantial assistance motion to determine
whether the refusal is based on an unconstitutional motive.
Wade v. United States, 504 U.S. 181, 185-86 (1992). In order to
invoke this review, however, a defendant must do more than make
1
Anders v. California, 386 U.S. 738 (1967).
2
U.S. Sentencing Guidelines Manual § 5K1.1 (2003).
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“generalized allegations of improper motive”--he must make a
“substantial threshold showing.” Id. at 186.
In this case, Wilson’s counsel never objected to the
Government’s refusal to move for a downward departure. The
Assistant United States Attorney informed the district court that
the Government was not moving for a departure because Wilson
refused to be debriefed regarding a past conviction. Wilson’s
counsel argued that Wilson had assisted the Government and that she
had advised him not to discuss the conviction in question until she
had an opportunity to investigate it, but did not specifically
object to the Government’s decision not to move for departure. We
conclude that the issue of the propriety of the Government’s
refusal to move for a departure was never squarely presented to the
district court, and in any event Wilson has failed to make a
threshold showing that the Government’s refusal to move was based
upon an improper motive.
In accordance with Anders, we have thoroughly examined
the entire record, including the transcripts of the Fed. R. Crim.
P. 11 and sentencing hearings, for any other potentially
meritorious issues and have found none.3 Accordingly, we affirm
3
This court entered an order on April 11, 2005, that stated:
“[t]o assist this Court in determining the impact, if any, of the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738
(2005), upon this appeal, appellant is accorded the opportunity to
submit supplemental briefing raising any claims based upon Booker
that appellant wishes this Court to consider.” Wilson was given
until April 25, 2005, to file a supplemental brief, but no briefs
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Wilson’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
were filed. Accordingly, we have not considered any potential
issues arising under Booker.
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