UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4832
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY LAVELL HORNE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:05-cr-00052-RBH)
Submitted: July 25, 2006 Decided: July 31, 2006
Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Henry M. Anderson, Jr., ANDERSON LAW FIRM, PA, Florence, South
Carolina, for Appellant. Arthur Bradley Parham, OFFICE OF THE
UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pursuant to a plea agreement, Ricky Lavell Horne pled
guilty to two counts of armed bank robbery, 18 U.S.C. § 2113, 2
(2000), and brandishing a firearm in furtherance of a crime of
violence, 18 U.S.C. § 924(c)(1)(A)(ii), 2 (2000). The district
court sentenced Horne to concurrent sixty-three-month sentences for
the § 2113 violations and a consecutive seven-year sentence for the
§ 924 violation. On appeal, counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious issues for appeal, but suggesting that the district
court erred during the Fed. R. Crim. P. 11 plea colloquy.
Because Horne did not seek to withdraw his guilty plea,
our review is for plain error. United States v. Martinez, 277 F.3d
517, 525-27 (4th Cir. 2002). The plea hearing transcript reveals
that the district court conducted a thorough Rule 11 colloquy that
assured Horne’s plea was made both knowingly and voluntarily. See
United States v. DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991).
Accordingly, we conclude Horne’s guilty plea was properly accepted
by the district court.
On appeal, Horne filed a pro se request, pursuant to U.S.
Sentencing Guidelines Manual § 5K1.1 (2004), for a substantial
assistance downward departure to be applied to his sentence; the
request was construed as a pro se supplemental brief. At the
sentencing hearing, counsel raised the possibility of a downward
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departure. However, counsel did not formally move for a downward
departure, and the district court did not state on the record that
it considered granting one. To the extent that the claim is
properly before this court, we conclude that no departure was
warranted. The Government was not obligated under the plea
agreement to file such a motion, United States v. Snow, 234 F.3d
187, 190 (4th Cir. 2000), and there is no indication that it
refused to make the motion based on an unconstitutional motive such
as race or religion. Wade v. United States, 504 U.S. 181, 185-86
(1992). Our review of the sentencing transcript reveals that,
while Horne intended to assist the authorities, he never provided
information that assisted a prosecution.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. This
court requires that counsel inform Horne, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Horne 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
Horne. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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