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    1) Brandon Morton appealed his 151-month sentence for two counts of bank robbery, arguing the district court erred in not granting a downward departure for substantial assistance to the government. 2) However, the plea agreement gave the government discretion on whether to file a motion for downward departure, so the court was not obligated to depart. 3) The appeals court also cannot review a district court's decision not to depart downward unless it mistakenly thought it lacked authority, which was not the case here. Therefore, the appeals court affirmed Morton's conviction and sentence.

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    Filed: 2004-02-20 Precedential Status: Non-Precedential Docket: 03-4576

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    1) Brandon Morton appealed his 151-month sentence for two counts of bank robbery, arguing the district court erred in not granting a downward departure for substantial assistance to the government. 2) However, the plea agreement gave the government discretion on whether to file a motion for downward departure, so the court was not obligated to depart. 3) The appeals court also cannot review a district court's decision not to depart downward unless it mistakenly thought it lacked authority, which was not the case here. Therefore, the appeals court affirmed Morton's conviction and sentence.

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    17 views3 pages

    United States v. Morton, 4th Cir. (2004)

    Uploaded by

    Scribd Government Docs
    1) Brandon Morton appealed his 151-month sentence for two counts of bank robbery, arguing the district court erred in not granting a downward departure for substantial assistance to the government. 2) However, the plea agreement gave the government discretion on whether to file a motion for downward departure, so the court was not obligated to depart. 3) The appeals court also cannot review a district court's decision not to depart downward unless it mistakenly thought it lacked authority, which was not the case here. Therefore, the appeals court affirmed Morton's conviction and sentence.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 03-4576

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    BRANDON SCOTT MORTON,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Anderson. Margaret B. Seymour, District Judge.
    (CR-02-871)

    Submitted: February 12, 2004

    Decided:

    February 20, 2004

    Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    James
    Barlow
    Loggins, Assistant
    Federal
    Public
    Defender,
    Greenville, South Carolina, for Appellant. Isaac Louis Johnson,
    Jr., OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
    Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.


    See Local Rule 36(c).

    PER CURIAM:
    Brandon Morton appeals his conviction pursuant to a
    guilty plea and 151-month sentence for two counts of bank robbery,
    in violation of 18 U.S.C. 2113(a) (2000).

    Counsel for Morton has

    filed a brief pursuant to Anders v. California, 386 U.S. 738


    (1967), in which he states there are no meritorious grounds for
    appeal, but presenting one issue for this courts review. Although
    notified of his right to file a supplemental brief, Morton has not
    done so.

    Finding no error, we affirm.


    Counsel suggests that the district court erred in failing

    to

    depart

    downward

    from

    Mortons

    sentencing

    substantial assistance to the Government.

    range

    for

    his

    However, in the plea

    agreement, the Government retained discretion over whether to make


    a substantial assistance motion; it was not obligated to so move.
    See United States v. Snow, 234 F.3d 187, 190 (4th Cir. 2000).
    Moreover, the denial of a request for a downward departure is not
    reviewable on appeal unless the district court mistakenly believed
    it lacked the authority to depart.
    F.2d 28, 30 (4th Cir. 1990).

    United States v. Bayerle, 898

    The record indicates the district

    court understood its authority to depart, but that it chose not to


    depart.

    Therefore, Mortons claim is unreviewable on appeal.


    As required by Anders, we have reviewed the entire record

    and have found no meritorious issues for appeal.


    affirm Mortons conviction and sentence.

    - 2 -

    Accordingly, we

    The 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.

    Counsels motion

    must state that a copy thereof 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

    - 3 -

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