UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4125

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JERRY L. FRIERSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Columbia. Cameron McGowan Currie, District

Judge. (CR-03-631)

Submitted: October 1, 2004 Decided: October 20, 2004

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jan S. Strifling, Columbia, South Carolina, for Appellant. Leesa

Washington, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Jerry L. Frierson seeks to appeal his conviction and 120-

month sentence imposed following his guilty plea to possession of

a stolen firearm. See 18 U.S.C. §§ 922(j), 924(a)(2) (2000).

Frierson’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there were no

meritorious grounds for appeal but raising as a potential issue the

district court’s decision to grant the Government’s motion for

upward departure. Although advised of his right to file a pro se

supplemental brief, Frierson declined to do so.

A sentencing court may depart from the guideline range

only if the court finds an aggravating or mitigating factor of a

kind, or to a degree, not adequately considered by the Sentencing

Commission. 18 U.S.C. § 3553(b) (2000) (setting forth general

principles for departure); Koon v. United States, 518 U.S. 81, 98

(1996). Because Frierson failed to object to the departure in the

court below, this Court reviews the district court’s decision to

depart for plain error. See United States v. Promise, 255 F.3d

150, 153 (4th Cir. 2001).

We have reviewed the record and conclude that the

district court’s decision to depart upwardly was not plainly

erroneous. The district court based its decision in part upon

Frierson’s stipulation to the departure in the plea agreement.

Additionally, the court found that Frierson’s criminal history
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category did not adequately reflect his prior criminal conduct, and

that the actual seriousness of the offense was not reflected in the

guidelines range, both of which are proper bases for departure.

See U.S. Sentencing Guidelines Manual, §§ 4A1.3, 5K2.21. We note

that it is arguable whether Frierson’s status as a felon entered

“into the determination of the applicable guideline range.” USSG

§ 5K2.21. However, in this case the upward departure may be

affirmed because there was another valid factor to support the

extent of the departure. See Williams v. United States, 503 U.S.

193, 203-04 (1992); United States v. Glick, 946 F.2d 335, 339-40

(4th Cir. 1991). 

In accordance with the requirements of Anders, we have

reviewed the entire record in this case and have found no

meritorious issues for appeal. Accordingly, we affirm Frierson’s

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 state that

a copy thereof was served on the client.
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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