UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL DALE BOWEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. William W. Wilkins, Senior
Circuit Judge, sitting by designation. (7:05-cr-01080-GRA-13)
Submitted: January 14, 2009 Decided: March 16, 2009
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicole E. Nicolette, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Leesa Washington, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Dale Bowen pled guilty to conspiracy to
possess with intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2006), and was sentenced to ninety-seven months in prison.
Bowen now appeals. His attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), questioning whether
the district court erred in calculating the drug amount
attributable to Bowen and whether Bowen should have received a
downward departure based on his substantial assistance to the
Government. Counsel concludes, however, that there are no
meritorious issues for review. Bowen was advised of his right
to file a pro se brief but did not file such a brief. We
affirm.
Counsel first questions whether the district court
erred in attributing 930.5 grams of methamphetamine to Bowen.
We note that Bowen stipulated in his plea agreement that he was
responsible for at least 500 grams but less than 1.5 kilograms
of the drug. Additionally, at his change of plea hearing, a
summary of his plea agreement, including this stipulation, was
read into the record, and Bowen informed the court that the
summary was accurate. Further, Bowen did not object to the
probation officer’s statement in the presentence report that
Bowen was responsible for 930.5 grams of methamphetamine.
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Finally, the record contains no evidence that Bowen was
responsible for a lower amount of methamphetamine. Accordingly,
we conclude that there was no error in the calculation of drug
amount attributable to Bowen. See United States v. Gilliam, 987
F.2d 1009, 1013 (4th Cir. 1993) (identifying methods by which
Government might meet its burden of establishing drug quantity).
Bowen also argues that the district court erred when
it did not grant him a downward departure based on his
substantial assistance to the Government. A refusal to depart
is not reviewable on appeal unless the district court failed to
understand its authority to depart. United States v. Brewer,
520 F.3d 367, 371 (4th Cir. 2008). Here, there clearly was no
such misunderstanding, as evidenced by the district court’s
granting a requested departure based on Bowen’s criminal history
category overstating the severity of his criminal record. We
conclude that we lack authority to review the court’s refusal to
further depart based on Bowen’s claim of substantial assistance.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This
court requires 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
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frivolous, counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy of
the motion 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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