UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 02-4783

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARQUIS DAVIS, a/k/a Kiser, a/k/a Bear, a/k/a MK,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (CR-02-69)

Submitted: February 19, 2004 Decided: February 24, 2004

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eric B. Snyder, BAILEY & GLASSER, L.L.P., Charleston, West Virginia, for Appellant. Kasey Warner, 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Unpublished opinions are not binding precedent in this circuit.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). PER CURIAM:

Marquis Davis appeals his conviction and 168-month

sentence imposed pursuant to a guilty plea to one count of

distribution of more than five grams of crack cocaine, in violation

of

(a)(1) (2000). Counsel has filed a brief in

accordance with Anders v. California,

(1967), raising

several issues but stating that, in his view, there are no

meritorious grounds for appeal. Davis was informed of his right to

file a pro se supplemental brief but did not do so. We affirm.

Counsel questions whether the district court violated the

rule announced in Apprendi v. New Jersey,

(2000), in

accepting Davis’ guilty plea and in sentencing Davis. Davis was

charged with distribution of more than five grams of crack, which

triggered the enhanced penalty provisions in § 841(b)(1)(B). At

the plea hearing conducted pursuant to Fed. R. Crim. P. 11, the

court informed Davis of the minimum and maximum penalties to which

he was subject, and he stated that he understood. In addition,

Davis’ 168-month sentence falls within the forty-year statutory

maximum and, therefore, does not implicate Apprendi. See United

States v. Angle,

(4th Cir. 2001) (en banc);

United States v. Kinter,

(4th Cir. 2000).

Next, counsel questions whether the district court erred

in applying a two-level enhancement pursuant to U.S. Sentencing

Guidelines Manual § 3B1.1(c) (2001), based upon Davis’ role in the

- 2 - offense. We find no plain error in the application of the

enhancement given that the record supports it and, at sentencing,

Davis agreed that the enhancement applied. See United States v.

Osborne,

(4th Cir. 2003) (discussing standard of

review).

Finally, counsel suggests that the district court should

have departed downward based upon Davis’ substantial assistance in

the absence of a government motion. Generally, a departure for

substantial assistance may not be made absent a motion by the

government. United States v. Schaefer,

(4th Cir.

1997). Because the government was not obligated to make such a

motion in its plea agreement with Davis, see United States v. Snow,

(4th Cir. 2000), and there is no evidence that

the government refused to make the motion based upon an improper

motive, see Wade v. United States,

(1992), we

find no error in the district court’s decision not to depart.

As required by Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Davis’ 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

- 3 - 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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