UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4211

BENJAMIN FRANKLIN WEAST,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-01-47)

Submitted: December 20, 2002

Decided: January 15, 2003

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Michael A. Kolb, MICHAEL A. KOLB ATTORNEY AT LAW,

Charlotte, North Carolina, for Appellant. Thomas Richard Ascik,

OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Benjamin Franklin Weast appeals his conviction and thirty-two

month sentence pursuant to his guilty plea to two counts of uttering

counterfeit obligations or securities, in violation of 18 U.S.C. § 472

(2000). Weast entered a guilty plea to both counts, under North Carolina v. Alford, 400 U.S. 25, 37 (1970), and was sentenced to thirtytwo months incarceration. Weast’s counsel has filed an appeal under

Anders v. California, 386 U.S. 738 (1967), and Weast has filed a pro

se supplemental brief. 

First, Weast argues the district court erred in denying him an

offense level adjustment for acceptance of responsibility. We review

a district court’s determination of whether a defendant is entitled to

an adjustment for acceptance of responsibility for clear error. United

States v. Ruhe, 191 F. 3d 376, 388 (4th Cir. 1999). Weast’s claim is

meritless. Weast entered a late guilty plea and denied liability for conduct related to his offenses. U.S. Sentencing Guidelines Manual

§ 3E1.1, comment. (n.1(h), n.6) (2000); United States v. Nale, 101

F.3d 1000, 1005 (4th Cir. 1996); United States v. Jones, 31 F.3d

1304, 1315 (4th Cir. 1994); United States v. Harris, 882 F.2d 902,

905-06 (4th Cir. 1989). 

Second, Weast argues the district court erred in failing to grant him

a downward departure for providing substantial assistance to the Government. We review this claim for clear error. United States v. Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991). Weast’s claim is

meritless. Weast cannot establish that at sentencing he had provided

substantial assistance to the Government sufficient to warrant a downward departure, or that there was a basis for departure absent the Government’s USSG § 5K1.1 motion. USSG § 5K1.1; USSG § 5K1.1,

comment. (n.3); Wade v. United States, 504 U.S. 181, 184-87 (1992);

United States v. Francois, 889 F.2d 1341, 143-45 (4th Cir. 1989). 

Third, Weast alleges he was subjected to prosecutorial misconduct.

These claims are meritless. Weast cannot establish the Government

erred by failing to move for a downward departure. USSG § 5K1.1.

Additionally, Weast cannot establish his statements to the police were

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altered, or that his criminal history calculation adversely effected his

sentence. USSG § 4A1.1-2. 

Fourth, Weast claims his sentence violates Apprendi v. New Jersey,

530 U.S. 466, 490 (2000). We review this claim for plain error. Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). This claim is meritless. Weast’s sentence did not exceed the

statutory maximum, and consequently, he cannot establish his sentence is erroneous. 18 U.S.C. § 472 (2000); USSG § 2B5.1(b);

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v.

Kinter, 235 F.3d 192, 201 (4th Cir. 2000), cert. denied, 532 U.S. 937

(2001). 

Fifth, Weast claims his trial counsel was ineffective. The record

does not clearly establish Weast’s trial counsel was ineffective, and

consequently, this claim must be raised under 28 U.S.C. § 2255

(2000). United States v. Richardson, 195 F.3d 192, 198 (4th Cir.

1999), cert. denied, 528 U.S. 1096 (2000); United States v. King, 119

F.3d 290, 295 (4th Cir. 1997). 

Accordingly, we affirm the Weast’s convictions and sentence. In

accordance with Anders, we have reviewed the entire record in this

case and find no other meritorious issues for appeal. We deny counsel’s pending motion to withdraw from the case. 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.

AFFIRMED

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