United States of America, Plaintiff-appellee, v. George Kent Bushey, Defendant-appellant, 39 F.3d 1178 (4th Cir. 1994)

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US Court of Appeals for the Fourth Circuit - 39 F.3d 1178 (4th Cir. 1994)

Submitted Sept. 26, 1994. Decided Oct. 26, 1994

Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert N. Maletz, Senior Judge, sitting by designation. (CR-93-157)

James K. Bredar, Fed. Public Defender, Denise Barrett, Asst. Fed. Public Defender, Baltimore, Md., for appellant.

Lynne A. Battaglia, U.S. Atty., Brent J. Gurney, Asst. U.S. Atty., Baltimore, Md., for appellee.

D. Md.


Before ERVIN, Chief Judge, and WILKINSON and HAMILTON, Circuit Judges.



George Kent Bushey entered a guilty plea to conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C.A. Sec. 846 (West Supp.1994) (Count One), and to income tax evasion, 26 U.S.C.A. Sec. 7201 (West Supp.1994) (Counts Three, Four, and Five). He also agreed to forfeit certain properties to the government. The district court imposed a sentence of ninety-seven months. Bushey's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising one issue but stating that, in her view, there are no meritorious issues for appeal. Bushey has been notified of his right to file a supplemental brief but has not done so. After a thorough review of the record, we affirm the convictions and sentence.

Defense counsel questions only the district court's failure to depart below the guideline range on the ground of extraordinary physical impairment. United States Sentencing Commission, Guidelines Manual, Sec. 5H1.4, p.s. (Nov.1993). Because the court clearly understood its authority to depart and decided that a departure was not appropriate in this case, appellate review of its decision is not available. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.), cert. denied, 498 U.S. 819 (1990). In accordance with the requirements of Anders, we have examined the entire record in this case and find no other meritorious issues for appeal.

We therefore affirm the convictions and the sentence imposed by the district court. 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.

Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964 (18 U.S.C.A. Sec. 3006A (West 1985 & Supp.1994)), this Court requires that counsel inform her client, in writing, of his right to petition the Supreme Court for further review. If requested by her client to do so, counsel should prepare a timely petition for a writ of certiorari.