UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4194
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CAROLYN JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-03-51)
Submitted: July 15, 2005 Decided: November 22, 2005
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Joan A. Mooney, LAW OFFICES OF STILLER & MOONEY, PLLC, Morgantown,
West Virginia, for Appellant. Kasey Warner, United States
Attorney, Stephanie L. Ojeda, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carolyn Jones pleaded guilty to providing a prohibited
object to a prison inmate, in violation of 18 U.S.C. § 1791(a)(1)
(2000). She was sentenced to forty-six months in prison. Jones
now appeals. Her attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two claims but stating
that, in her opinion, there are no meritorious issues for review.
Jones has filed a pro se supplemental brief raising one issue.
Counsel has also filed a supplemental brief claiming that Jones’
sentence violates United States v. Booker, 125 S. Ct. 738 (2005),
and Blakely v. Washington, 542 U.S. 296 (2004). Finding no error,
we affirm.
I
Jones was charged with three offenses in a five-count
indictment. She entered into a written plea agreement, in which
she agreed to plead guilty to the § 1791(a)(1) offense. Jones
admitted at her Fed. R. Crim. P. 11 proceeding that, on November 2,
2001, she delivered a package containing thirteen “balloons” or
packets of heroin weighing 24.4 grams to Kenneth Lamont Owens.
Owens was an inmate at the Federal Correctional Institute at
Beckley, West Virginia.
The transcript of Jones’ Rule 11 hearing discloses full
compliance with that Rule. We note that she understood the maximum
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sentence to which she was statutorily subject and that her sentence
would be determined by reference to the sentencing guidelines.
Jones’ presentence report assigned a base offense level
of 13. See U.S. Sentencing Guidelines Manual § 2P1.2(a)(2) (2003).
The cross reference in the guideline applied in this case,
resulting in a base offense level of 26. See USSG § 2P1.2(c).
Jones’ criminal history category was I, for a guideline range of
63-78 months. There were no objections to the presentence report.
At sentencing, the district court reduced the offense
level by three levels for acceptance of responsibility, resulting
in a guideline range of 46-57 months. The court denied Jones’
motion for downward departure based upon a sentence disparity
between Owens, who pleaded guilty to a different offense, and
Jones. The court sentenced Jones to forty-six months in prison.
II
Jones first claims that the district court erred when it
denied her motion for downward departure. This court lacks the
authority to review the denial of a motion for downward departure
unless the district court mistakenly believed it lacked the power
to depart. United States v. Bayerle, 898 F.2d 28, 30 (4th Cir.
1990). Here, the district court did not express doubt about its
ability to depart, but instead found no merit to counsel’s argument
and, in its discretion, denied the motion. Accordingly, we lack
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jurisdiction to review the denial of the motion, and we dismiss
this portion of the appeal.
III
In both the Anders brief and Jones’ pro se brief, an
argument is raised that the district court should have ordered that
Jones serve part of her sentence on home confinement because of her
physical condition. The claim was not raised below, and our review
is for plain error. See United States v. Olano, 507 U.S. 725, 731-
32 (1993). Because Jones, who underwent gastric bypass surgery in
2001 and requires a special diet, does not have an extraordinary
physical impairment and is not a seriously infirm individual, home
detention would not be warranted under USSG § 5H1.4. Therefore,
there was no plain error.
IV
Although Jones claims that her sentence violates Booker
and Blakely, it did not. Quite simply, Jones admitted at the Rule
11 proceeding that she delivered 24.4 grams of heroin to Owens, a
prisoner. In Booker, the Supreme Court concluded that enhancing
sentences based on facts found by the court alone and not by the
jury violated the Sixth Amendment imperative that “[a]ny fact
(other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established
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by a plea of guilty or a jury verdict must be admitted by the
defendant or proved to a jury beyond a reasonable doubt.” United
States v. Booker, 125 S. Ct. at 756 (reaffirming holding in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). It is simply
immaterial that Jones may have believed that the contraband was
marijuana. She admitted what substance she introduced into the
prison and the weight of that substance. There was no Sixth
Amendment violation.
V
Our review of the entire record in this case discloses no
grounds for reversal, and we accordingly affirm. In accordance
with Anders, we have examined the entire record and find no
meritorious issues for appeal. Accordingly, we dismiss the appeal
in part and affirm in part. This court requires that counsel
inform her client, in writing, of her 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, 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
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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