UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROGER SARVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:11-cr-02254-TLW-2)
Submitted: August 5, 2013 Decided: August 8, 2013
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tristan M. Shaffer, TRISTAN SHAFFER, ATTORNEY AT LAW, Chapin,
South Carolina, for Appellant. William E. Day, II, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roger Sarvis appeals the 156-month sentence he
received after he pled guilty to conspiring to distribute
several controlled substances, including oxycodone, in violation
of 21 U.S.C.A. § 846 (2006). Sarvis’ counsel has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he states that he has identified no meritorious issues for
appeal, but questions whether trial counsel was
unconstitutionally ineffective in failing to object to the
Government’s drug weight calculations, which assertedly included
several drug quantities that Sarvis and his wife possessed
either legally or for their own personal use.
Having reviewed the record, we conclude that the
record does not “conclusively” demonstrate any such inefficacy,
and we therefore decline to entertain Sarvis’ ineffective
assistance claim. United States v. Powell, 680 F.3d 350, 359
(4th Cir. 2012), cert. denied, 133 S. Ct. 376 (2012). 1
Sarvis has filed a pro se supplemental brief in which
he asks to be resentenced and to receive a downward departure
under U.S. Sentencing Guidelines Manual § 5K1.1 (2012) because
he cooperated with the Government. But a court may revisit the
1
Such a claim is more appropriately raised under 28
U.S.C.A. § 2255 (West Supp. 2013).
2
Government’s decision not to file a motion for substantial
assistance only if the Government’s failure to do so was in
breach of an obligation under the plea agreement, or if its
decision was motivated by an unconstitutional motive or was not
rationally related to a legitimate government end. See Wade v.
United States, 504 U.S. 181, 185-86 (1992); United States v.
Butler, 272 F.3d 683, 686-87 (4th Cir. 2001). None of these
exceptions are at issue in this case, and it follows that
Sarvis’ arguments in this respect are without merit.
Sarvis also contends that he should be resentenced
because he was assigned responsibility for more drug weight than
he had anticipated when he pled guilty. But his sentence was in
fact based on his own stipulations as to the applicable adjusted
offense level. Moreover, Sarvis was fully apprised at the time
of his plea that, at sentencing, the court could assign him
responsibility for a higher drug weight than he expected. His
claim is therefore without merit. 2
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 judgment of the district court.
2
Sarvis’ request that we accord his appeal the same
treatment as that received by an appellant in a separate appeal
is meritless, as the cases are procedurally and factually
dissimilar.
3
This court requires that counsel inform Sarvis, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Sarvis 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 Sarvis. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
4