United States v. McLaurin

Court Case Details
Court Case Opinion




No. 03-4968


Plaintiff - Appellee,



Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-03-14)

Submitted: August 19, 2005

Decided: September 21, 2005

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Brian Michael Aus, Durham, North Carolina, for Appellant. Angela
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).


Timothy Lamarl McLaurin appeals his conviction and 310-

month sentence imposed following his guilty plea to distribution of

crack cocaine and carrying a firearm during a drug trafficking

crime. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) (2000); 18

U.S.C.A. § 924(c)(1)(A)(i) (West Supp. 2005).

McLaurin’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there were no

meritorious grounds for appeal but raising as a potential issue the

district court’s denial of McLaurin’s motion for a downward

departure. McLaurin filed a pro se supplemental brief, raising

additional claims.

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. United States v. Bayerle, 898

F.2d 28, 30 (4th Cir. 1990). The record indicates the district

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

depart. Therefore, we find that the claim raised by counsel in the

Anders brief is unreviewable on appeal.

Pursuant to McLaurin’s pro se supplemental brief and a

letter submitted by counsel pursuant to Fed. R. App. P. 28(j), an

issue has been raised as to whether McLaurin was sentenced in

violation of United States v. Booker, 125 S. Ct. 738 (2005). We

have reviewed McLaurin’s sentence for plain error in light of

- 2 -

Booker, and find that any error in the district court’s designation

of McLaurin as a career offender, its imposition of a two-level

enhancement for the use of a minor pursuant to U.S. Sentencing


Guidelines § 3B1.4 (2003),

or its treatment of the guidelines as

mandatory did not affect McLaurin’s substantial rights. See United

States v. Cheek, 415 F.3d 349 (4th Cir. 2005) (holding that the

armed career criminal designation based on prior convictions does

not violate Booker); United States v. White, 405 F.3d 208, 225 (4th

Cir. 2005) (requiring an appellant to demonstrate actual prejudice

from the application of the mandatory guideline scheme on plain

error review). As required by Anders, we have throughly reviewed

the record for any potential sentencing claims and conclude that

McLaurin is not entitled to relief under Booker.

With regard to the remaining issues raised in McLaurin’s

supplemental brief, we find his claims to be without merit.

Specifically, his claim of ineffective assistance of counsel is not

appropriately raised on direct appeal. See United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Further, although

McLaurin alleges that the Government breached the plea agreement,

he points to no evidence in support of this contention. Finally,

we find that McLaurin’s argument that the indictment was


We find that this enhancement did not impact the total

offense level because the district court found McLaurin to be a
career offender. See United States v. Collins, 412 F.3d 515, 523-
24 (4th Cir. 2005).

- 3 -

insufficient is belied by the record and note that McLaurin was

never convicted of violating 18 U.S.C. § 922(g)(1) (2000) as this

count was dismissed at sentencing.

In accordance with the requirements of Anders, we have

reviewed the entire record in this case and have found no

meritorious issues for appeal. Accordingly, we affirm McLaurin’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 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.


- 4 -

Referenced Cases