UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4917
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC HAMMONS ALLEN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-750)
Submitted: October 28, 2005 Decided: November 17, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Debra Y. Chapman, DEBRA CHAPMAN PA, Columbia, 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Unpublished opinions are not binding precedent in this circuit.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:
Eric Hammons Allen, Jr., appeals from his conviction and
350-month sentence imposed after he pleaded guilty to two counts of
using and carrying firearms during and in relation to, and
possessing the firearms in the furtherance of, robbery, and aiding
and abetting such, in violation of 18 U.S.C.A. §§ 2, 924(c) (West
2000 & Supp. 2005). Allen’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising as potential
issues the district court’s compliance with Fed. R. Crim. P. 11 in
accepting Allen’s guilty plea and the reasonableness of his
sentence and extent of downward departure in light of United
States v. Booker, 125 S. Ct. 738 (2005).
Allen did not move in the district court to withdraw his
guilty plea, therefore his challenge to the adequacy of the Rule 11
hearing is reviewed for plain error. United States v. Martinez,
277 F.3d 517, 525 (4th Cir. 2002) (holding that “plain error
analysis is the proper standard for review of forfeited error in
the Rule 11 context”). We have carefully reviewed the transcript
of the Rule 11 hearing and find no plain error in the court’s
acceptance of Allen’s guilty plea.
Counsel also raises as a potential issue the
reasonableness of Allen’s 350-month sentence and extent of downward
departure in light of Booker. It is clear from the record that
Allen was sentenced under the mandatory application of the
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Guidelines, rather than under the advisory application mandated by
Booker. Accordingly, we conclude that review for “reasonableness”
is inapplicable.
This court’s limited ability to review a sentence is
derived from 18 U.S.C. § 3742 (2000). United States v. Porter, 909
F.2d 789, 794 (4th Cir. 1990). A defendant may appeal a sentence
that is imposed in violation of the law, is imposed as a result of
the incorrect application of the Sentencing Guidelines, is greater
than the sentence specified in the applicable Guidelines range, or
is imposed for an offense without a Guidelines range and is plainly
unreasonable. 18 U.S.C. § 3742. Thus, an appellant’s challenge to
the district court’s exercise of discretion in setting a sentence
within a properly calculated Guidelines range does not state an
appealable question under 18 U.S.C. § 3742. Porter, 909 F.2d at
794. This court also lacks jurisdiction under § 3742(a) “to review
the extent of the district court’s downward departure, except in
instances in which the departure decision resulted in a sentence
imposed in violation of law or resulted from an incorrect
application of the Guidelines.” United States v. Hill, 70 F.3d
321, 324 (4th Cir. 1995).
Since this court lacks the authority to review a district
court’s decision to impose a sentence within a correctly calculated
Guidelines range and lacks the authority to review the extent of a
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downward departure, this issue lacks merit. Porter, 909 F.2d at
794; Hill, 70 F.3d at 324.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Allen’s conviction and sentence. We
deny Allen’s motion to appoint substitute counsel. This court
requires that counsel inform her 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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