United States of America v. California, 386 U.S. 738 1967 , stating that, in his opinion, there are no…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4101
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KATHY SUE CONRAD,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-01-14)
Submitted: June 18, 2004 Decided: July 8, 2004
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Frame, Clarksburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Sherry L. Muncy, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Kathy Sue Conrad appeals her conviction and sentence
after pleading guilty to use of a communications facility in the
commission of a drug offense in violation of 21 U.S.C. § 843(b)
(2000). Conrad’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in his opinion,
there are no meritorious issues for appeal. Although concluding
the following claims lack merit, counsel asserts the district court
erred in determining drug quantity and in denying a motion for a
downward departure. Counsel further asserts that the district
court should have intervened in the Government’s decision to offer
immunity to a witness who was allegedly distributing OxyContin to
minors. Conrad was informed of her right to file a pro se
supplemental brief, but has not done so. We affirm Conrad’s
conviction and sentence.
The drug weight determination is factual in nature and is
therefore reviewed for clear error. United States v. Fletcher, 74
F.3d 49, 55 (4th Cir. 1996). In conducting this review, this Court
gives due regard to the district court’s opportunity to judge the
credibility of witnesses. 18 U.S.C. § 3742(e) (2000). Credibility
determinations therefore receive deference unless they are without
support in the record. United States v. Brown, 944 F.2d 1377,
1379-80 (7th Cir. 1991). Credibility determinations by the
factfinder are rarely disturbed on appeal. United States v.

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Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We find the court was
not clearly erroneous in determining the drug quantity.
We will not review the district court’s decision not to
grant a downward departure. United States v. Carr, 271 F.3d 172,
176-77 (4th Cir. 2001). Finally, Conrad is not entitled to relief
based on her assertion that the court should have intervened and
investigated the Government’s conduct.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Conrad’s conviction and sentence. The court requires that
counsel inform his client, in writing, of her 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.
AFFIRMED

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