United States v. Burgess

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4883

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DON CORNELIUS BURGESS,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00481-TLW-9)

Submitted: February 22, 2011 Decided: March 17, 2011

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Jonathan Harvey, Columbia, South Carolina, for Appellant.
Arthur Bradley Parham, Assistant United States Attorney,
Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Don Cornelius Burgess seeks to appeal the district

court’s amended judgment granting, in part, the Government’s

Fed. R. Crim. P. 35(b) motion and reducing his sentence from 175

months to 140 months in prison. Burgess’s counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

pointing out that Burgess sought a greater reduction than the

one he received, but concluding that 18 U.S.C.A. § 3742 (West

2000 & Supp. 2010) provides no basis for the appeal. Burgess

was informed of his right to file a pro se supplemental brief,

but has not done so. The Government declined to file a

responsive brief.

We lack the authority to review a district court’s

decision concerning Rule 35(b) motions unless the ultimate

sentence was imposed in violation of the law. United States v.

Hartwell, 448 F.3d 707, 712-14 (4th Cir. 2006); United States v.

Pridgen, 64 F.3d 147, 148-50 (4th Cir. 1995); see 18 U.S.C.A.

§ 3742. We conclude that the sentence Burgess received was not

imposed in violation of the law. Thus, we lack the authority to

review the district court’s amended judgment.

Because Burgess asserts no ground upon which this

court may review the district court's Rule 35 determination, nor

has our independent review of the record, in accordance with

Anders, revealed any such ground, we dismiss Burgess’s appeal.

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This court requires that counsel inform Burgess, in writing, of

his right to petition the Supreme Court of the United States for

further review. If Burgess 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

representation. Counsel’s motion must state that a copy thereof

was served on Burgess. 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.

DISMISSED

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