UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 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Unpublished opinions are not binding precedent in this circuit.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). 
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 district court misapplied the Sentencing Guidelines and violated the

Constitution when it sentenced him as a career offender, the Government breached his plea agreement and engaged in prosecutorial misconduct 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 counsel 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 consideration 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 properly 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 Umburger’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 "Umberger" throughout the record on appeal. For consistency, we use "Umburger." 

2 UNITED STATES v. UMBURGER
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. 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

UNITED STATES v. UMBURGER 3