UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4968
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY LAMARL MCLAURIN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-14)
Submitted: August 19, 2005 Decided: September 21, 2005
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian Michael Aus, Durham, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Lamarl McLaurin appeals his conviction and 310-
month sentence imposed following his guilty plea to distribution of
crack cocaine and carrying a firearm during a drug trafficking
crime. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) (2000); 18
U.S.C.A. § 924(c)(1)(A)(i) (West Supp. 2005).
McLaurin’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 as a potential issue the
district court’s denial of McLaurin’s motion for a downward
departure. McLaurin filed a pro se supplemental brief, raising
additional claims.
The denial of a request for a downward departure is not
reviewable on appeal unless the district court mistakenly believed
it lacked the authority to depart. United States v. Bayerle, 898
F.2d 28, 30 (4th Cir. 1990). The record indicates the district
court understood its authority to depart, but that it chose not to
depart. Therefore, we find that the claim raised by counsel in the
Anders brief is unreviewable on appeal.
Pursuant to McLaurin’s pro se supplemental brief and a
letter submitted by counsel pursuant to Fed. R. App. P. 28(j), an
issue has been raised as to whether McLaurin was sentenced in
violation of United States v. Booker, 125 S. Ct. 738 (2005). We
have reviewed McLaurin’s sentence for plain error in light of
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Booker, and find that any error in the district court’s designation
of McLaurin as a career offender, its imposition of a two-level
enhancement for the use of a minor pursuant to U.S. Sentencing
Guidelines § 3B1.4 (2003),* or its treatment of the guidelines as
mandatory did not affect McLaurin’s substantial rights. See United
States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that the
armed career criminal designation based on prior convictions does
not violate Booker); United States v. White, 405 F.3d 208, 225 (4th
Cir. 2005) (requiring an appellant to demonstrate actual prejudice
from the application of the mandatory guideline scheme on plain
error review). As required by Anders, we have throughly reviewed
the record for any potential sentencing claims and conclude that
McLaurin is not entitled to relief under Booker.
With regard to the remaining issues raised in McLaurin’s
supplemental brief, we find his claims to be without merit.
Specifically, his claim of ineffective assistance of counsel is not
appropriately raised on direct appeal. See United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Further, although
McLaurin alleges that the Government breached the plea agreement,
he points to no evidence in support of this contention. Finally,
we find that McLaurin’s argument that the indictment was
*
We find that this enhancement did not impact the total
offense level because the district court found McLaurin to be a
career offender. See United States v. Collins, 412 F.3d 515, 523-
24 (4th Cir. 2005).
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insufficient is belied by the record and note that McLaurin was
never convicted of violating 18 U.S.C. § 922(g)(1) (2000) as this
count was dismissed at sentencing.
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 affirm McLaurin’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
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