US v. Mack

Filing 920070720

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4515

UNITED STATES OF AMERICA, Plaintiff - Appellee, versus CLESHON JOAQUIN MACK, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:04-cr-00582-TLW) Submitted: July 9, 2007 Decided: July 20, 2007

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges. Affirmed by unpublished per curiam opinion. William F. Nettles, IV, Assistant Federal Public Defender, Florence, South Carolina, for Appellant. Rose Mary Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Pursuant to a plea agreement, Cleshon Joaquin Mack pled guilty to two counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000 & Supp. 2007) and 18 U.S.C. § 2 (2000). The district court granted the government's motion for a downward departure from the thirty-two-year sentence and sentenced Mack to twenty-four years in prison. Mack timely appealed. Mack's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), challenging the adequacy of the Fed. R. Crim. P. 11 hearing and the extent of the district court's downward departure. Mack

was advised of his right to file a pro se supplemental brief, but he did not file one. Counsel raises as a potential issue the adequacy of the plea hearing, but does not specify any deficiencies in the district court's Rule 11 inquiries. Because Mack did not move in the

district court to withdraw his guilty plea, any error in the Rule 11 hearing is reviewed for plain error. United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (discussing standard). Our

careful review of the record convinces us that the district court fully complied with the mandates of Rule 11 in accepting Mack's guilty plea and ensured that Mack entered his plea knowingly and voluntarily and that the plea was supported by an independent factual basis. See United States v. DeFusco, 949 F.2d 114, 116,

119-20 (4th Cir. 1991).

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Counsel also questions the extent of the district court's downward departure. This court does not have "jurisdiction to

review the extent of the district court's downward departure, except in instances in which the departure decision resulted in a sentence imposed in violation of the law or resulted from an incorrect application of the Guidelines." 70 F.3d 321, 324 (4th Cir. 1995). United States v. Hill,

The court considered the factors

in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007) and explained its reasons for imposing its sentence. circumstances that Mack's sentence We do not find under these was unreasonable. United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). In accordance with Anders, we have reviewed the entire record for any meritorious issues and have found none.

Accordingly, we affirm Mack's conviction and sentence.

This 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 We dispense with oral argument because

was served on the client. the facts and legal

contentions are adequately presented in the

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materials

before

the

Court

and

argument

would

not

aid

the

decisional process.

AFFIRMED

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