UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4565
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL MCRAE, a/k/a Clyde McRae,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00295-3)
Submitted: December 22, 2006 Decided: January 17, 2007
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Charles Jones, Charlotte, North Carolina, for Appellant.
Kimlani Murray Ford, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael McRae pled guilty pursuant to a plea agreement to
one count of conspiracy to possess with intent to distribute
cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000).
Because McRae was previously convicted of two felony drug offenses,
the Government filed an information to seek enhanced penalties in
accordance with 21 U.S.C. § 851 (2000). In compliance with the
statutory mandatory minimum, the district court sentenced McRae to
life in prison. See 21 U.S.C. § 841(b)(1)(A) (2000).
Counsel for McRae has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), alleging McRae’s sentence was
unduly harsh. McRae filed a pro se supplemental brief claiming the
Government should have moved for a downward departure of the
mandatory minimum sentence, but refused to do so. We affirm.
After a review of the record, we conclude the life
sentence imposed upon McRae was required by statute. Pursuant to
21 U.S.C. § 841(b)(1)(A), any person convicted of conspiracy to
distribute the amount of cocaine base to which McRae pled guilty,
and who has “two or more prior convictions for a felony drug
offense,” must receive a “mandatory term of life imprisonment
without release.” 21 U.S.C. § 841(b)(1)(A). While a district
court may depart below the sentencing range established by the
Sentencing Guidelines, such a departure may result in a sentence
below the minimum term specified in the offense of conviction only
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if permitted by law. 18 U.S.C. § 3553(e) (2000) (limiting
authority of district court to depart below statutory minimum to
cases in which the government has moved for such a departure on the
basis of substantial assistance); United States v. Patterson, 38
F.3d 139, 146 n.8 (4th Cir. 1994) (observing that “[t]he district
court could have sentenced below the statutory minimum only if this
departure was based on the Government's motion for downward
departure due to Defendant's substantial assistance”); cf. 18
U.S.C. § 3553(f) (2000) (safety valve provision) (limiting
applicability of statutory minimum penalties for certain drug
offenses when specified criteria are met); U.S. Sentencing
Guidelines Manual § 5C1.2 (2005) (same).
In this case, there was no permissible basis for the
district court to depart from the mandatory life sentence. The
Government exercised the discretion reserved to it in the plea
agreement and refused to make a substantial assistance motion
because McRae refused to fully cooperate and violated the terms of
his pretrial release by using drugs. Moreover, the safety valve
provision did not apply because McRae had too many criminal history
points. See 18 U.S.C. § 3553(f) (defendant may not have more than
one criminal history point for safety valve provision to apply).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. We therefore affirm McRae’s conviction and sentence. This
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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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