UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OTIS RORIE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00033-LHT-1)
Submitted: February 25, 2009 Decided: March 24, 2009
Before NIEMEYER, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished by per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Rorie, Jr., appeals the sentence imposed upon him
after his guilty plea to one count of conspiracy to possess with
intent to distribute fifty grams or more of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). Counsel filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), stating that there are no meritorious grounds for
appeal, but questioning whether the district court abused its
discretion by not reducing Rorie’s offense level by more than
one level in its departure under U.S. Sentencing Guidelines
Manual (“USSG”) § 5K1.1 (2007). Rorie was notified of his right
to file a supplemental pro se brief but has not done so.
Finding no reversible error, we affirm.
Rorie’s probation officer recommended an offense level
of 34 in the presentence report. Prior to sentencing, the
Government moved for a one level reduction in offense level
under USSG § 5K1.1 in recognition of Rorie’s substantial
assistance. The district court granted the motion. With an
offense level of 33 and a criminal history category of VI,
Rorie’s advisory guidelines range was 235 to 293 months in
prison. The district court sentenced him to 235 months.
Rorie argues that the district court should have
exercised its discretion to further reduce the offense level.
However, mere dissatisfaction with the extent of a district
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court’s downward departure does not provide a basis for appeal
under 18 U.S.C. § 3742 (2006). United States v. Hill, 70 F.3d
321, 324 (4th Cir. 1995). Even after the Supreme Court’s ruling
in United States v. Booker, 543 U.S. 220 (2005), we lack the
authority to review a sentencing court’s decision to depart
“unless the court failed to understand its authority to do so.”
United States v. Brewer, 520 F.3d 367, 371 (4th Cir. 2008). As
it is apparent from the record that the district court was aware
of its authority to depart further, the district court’s
decision is not reviewable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Rorie’s conviction and sentence. We deny
Rorie’s motion to appoint new counsel. This court requires that
counsel inform Rorie, in writing, of the right to petition the
Supreme Court of the United States for further review. If Rorie
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 Rorie.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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