United States of America v.  Christopher Umburger

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4712 
CHRISTOPHER UMBURGER,
Defendant-Appellant. 
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-00-204)
Submitted: March 26, 2002
Decided: April 4, 2002
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ward Morgan, Bluefield, West Virginia, for Appellant. Kasey War-
ner, United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

-- 1 of 3 --

OPINION
PER CURIAM:
Christopher Lee Umburger* appeals his sentence, pursuant to his
guilty plea, for distribution of heroin in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1999). Umburger’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal. Umburger also filed
a pro se supplemental brief. Both Umburger’s counsel and Umburger
contend that the district court erred by denying as moot his motion for
downward departure based on Umburger’s post-offense rehabilitation
efforts. In addition, Umburger argues on his own behalf that the dis-
trict court misapplied the Sentencing Guidelines and violated the
Constitution when it sentenced him as a career offender, the Govern-
ment breached his plea agreement and engaged in prosecutorial mis-
conduct when it failed to represent the full breadth of his cooperation
to the district court when moving for downward departure pursuant
to U.S. Sentencing Guidelines Manual § 5K1.1 (2000), and his coun-
sel provided ineffective assistance by failing to object to the district
court’s decision to sentence Umburger as a career offender.
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The district court took Umburger’s rehabilitation efforts into consid-
eration when determining his sentence, and did not misapprehend its
authority to depart. See United States v. Bayerle, 898 F.2d 28 (4th Cir.
1990). Further, Umburger had at least two prior felony convictions for
crimes of violence or controlled substance offenses, so he was prop-
erly found to be a career offender. USSG § 4B1.1. We find no plain
error in the scope of the Government’s request for a departure under
USSG § 5K1.1, which prompted the district court to reduce Umbur-
ger’s offense level by five levels. Finally, because the record in this
case does not conclusively show counsel was ineffective, we decline
to consider this claim on direct appeal. See United States v. King, 119
*The Appellant’s name is alternatively spelled "Umburger" and "Um-
berger" throughout the record on appeal. For consistency, we use "Um-
burger."
2 UNITED STATES v. UMBURGER

-- 2 of 3 --

F.3d 290 (4th Cir.), cert. denied, 531 U.S. 1193 (2001). We therefore
affirm Umburger’s 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3 UNITED STATES v. UMBURGER

-- 3 of 3 --