UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4293
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY MANUEL WOODS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00004-2)
Submitted: October 31, 2006 Decided: November 3, 2006
Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jerry Manuel Woods pled guilty pursuant to a plea
agreement to conspiracy to manufacture and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841, 846
(2000) (“Count One”), and possession of a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c) (2000) (“Count Four”). The Government filed a 21 U.S.C.
§ 851 (2000) information, giving notice of its intention to seek
enhanced an enhanced penalty on Count One by virtue of a prior
felony drug conviction. The district court sentenced Woods to the
mandatory minimum punishment on both counts as provided for by
statute, ten years’ imprisonment on Count One, see 21 U.S.C.
§ 841(b)(1)(B) (2000), and five years’ imprisonment on Count Four.
See 18 U.S.C. § 924(c) (2000).
Woods appealed. His counsel has filed a brief pursuant
to Anders v. California, 368 U.S. 738 (1967), contending there
exist no meritorious issues for appeal but suggesting the district
court erred when it refused to compel the Government to move for a
downward departure for substantial assistance pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 5K1.1 (2004). Although
notified of his right to do so, Woods did not submit a pro se
supplemental brief. The Government declined to file a responsive
brief.
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We review for clear error the district court’s decision
not to compel the Government to file a § 5K1.1 motion. United
States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000); United States v.
Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). Woods’ plea agreement
did not obligate the Government to move for a USSG § 5K1.1
departure even if he provided substantial assistance. There was no
evidence that the Government refused to make the motion based on
any unconstitutional motive. See Wade v. United States, 504 U.S.
181, 185-86 (1992). Therefore, the district court did not clearly
err in refusing to compel the Government to file a § 5K1.1 motion.
Furthermore, we note Woods was sentenced to the statutory
mandatory minimum terms of imprisonment on both counts. Absent an
18 U.S.C. § 3553(e) motion, the district court lacked the authority
to sentence Woods below the statutory mandatory minimum sentences.
See United States v. Allen, 450 F.3d 565, 568-69 (4th Cir. 2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Woods’ convictions and sentence. This
court requires that counsel inform Woods, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Woods 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 further representation.
Any such motion filed by counsel must state that a copy thereof was
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served on Woods. 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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