UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4285

WENDELL SAMUEL CHISOLM,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Falcon B. Hawkins, Senior District Judge.

(CR-01-692)

Submitted: November 5, 2002

Decided: December 3, 2002

Before NIEMEYER and TRAXLER, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 

COUNSEL

J. Robert Haley, Assistant Federal Public Defender, Charleston, South

Carolina, for Appellant. Derk L. B. Van Raalte, IV, OFFICE OF THE

UNITED STATES ATTORNEY, Charleston, South Carolina, for

Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Wendell Samuel Chisolm appeals his conviction and sentence

entered on his guilty plea to armed robbery and two related firearms

offenses in violation of 18 U.S.C. § 371 (2000), and 18 U.S.C.

§ 924(c) (2000). In a thorough but otherwise unremarkable Fed. R.

Crim. P. 11 hearing, Chisolm waived indictment and pled guilty to a

string of armed robberies of banks and businesses in and around

Charleston, South Carolina. Chisolm’s attorney noted a timely appeal

and filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), in which he represents that there are no arguable issues

of merit presented by this appeal. Nonetheless, he directs the court’s

attention to the extent of the district court’s departure from the mandatory minimum sentences in this case, and suggests that Chisolm

might have been entitled to additional downward departures based on

the perceived disparity in sentencing between Chisolm and a coconspirator. 

Chisolm filed a supplemental brief in which he echoed the complaints regarding the district court’s sentencing and urged that the

court should have departed downward on the basis of numerous other

grounds. Chisolm also suggested that the Government had engaged in

some form of misconduct in its description of the offense conduct and

his role in it. Additionally, Chisolm contends that his counsel failed

to afford him constitutionally adequate assistance in aiding his plea

of guilty. Because we find no merit to any of Chisolm’s assignments

of error, we affirm Chisolm’s conviction and sentence. To the extent

that Chisolm and his attorney seek to raise issues over which this

court lacks jurisdiction, this appeal is dismissed. 

Counsel contends that the district court erred in the extent of its

downward departure. A defendant may not ordinarily appeal the

extent of a downward departure unless the departure decision resulted

2 UNITED STATES v. CHISOLM
in a violation of law or resulted from an incorrect application of the

guidelines. United States v. Hill, 70 F.3d 321, 324-25 (4th Cir. 1995).

Counsel makes no such allegation in this case, and no error of that

magnitude appears from the record. Accordingly, the issue is not

appealable and the appeal is dismissed on this point. Similarly, Chisolm argues in his informal brief that there were numerous other

grounds on which the district court could have departed downward,

including the perceived disparity in his sentence and that of his coconspirator. This court does not have jurisdiction to review the district

court’s decision not to depart downward on those other grounds

unless the district court mistakenly believed it lacked authority to

depart downward. United States v. Bayerle, 898 F.2d 28, 30-31 (4th

Cir. 1990). Because there is no plausible assertion that the district

court labored under that mistaken belief, the appeal is dismissed on

this issue as well. United States v. Bailey, 975 F.2d 1028, 1035 (4th

Cir. 1992). 

In his informal brief, Chisolm also suggests that his counsel was

ineffective in assisting his entry of a guilty plea. Claims of attorney

error are not cognizable on direct appeal unless counsel’s ineffectiveness appears plainly on the record. See United States v. King, 119

F.3d 290, 295 (4th Cir. 1997); United States v. DeFusco, 949 F.2d

114, 120-21 (4th Cir. 1991). Such claims are better suited to a motion

under 28 U.S.C. § 2255 (2000). See DeFusco, 949 F.2d at 120. No

error on the part of counsel appears plainly on the face of the record

before the court. Finally, there is no merit to Chisolm’s contention

that the prosecution somehow engaged in misconduct in the description of his offense conduct, both at the plea hearing and in the presentence report. See United States v. Golding, 168 F.3d 700, 702 (4th Cir.

1999). 

As required by Anders, we have independently reviewed the entire

record and all pertinent documents. We have considered all possible

issues presented by this record and conclude that there are no nonfrivolous grounds for this appeal. Pursuant to the plan adopted by the

Forth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court for further review. If requested by the client to do so,

counsel should prepare a timely petition for writ of certiorari, unless

UNITED STATES v. CHISOLM 3
counsel believes that such a petition would be frivolous. In that case,

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. 

Chisolm’s conviction and sentence are hereby affirmed. To the

extent that Chisolm and counsel attempt to appeal issues over which

this court lacks jurisdiction, this appeal is dismissed. We deny Chisolm’s pending motion for the appointment of replacement counsel at

the Government’s expense and 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 IN PART; DISMISSED IN PART

4 UNITED STATES v. CHISOLM