The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4654
SONIA LORENA BROWN,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4695
SONIA LORENA BROWN,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-01-104-V)
Submitted: October 1, 2003
Decided: October 20, 2003
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Chiege O. Kalu Okwara, LAW OFFICE OF CHIEGE O. KALU
OKWARA, Charlotte, North Carolina, for Appellant. Robert J. Con-
2 UNITED STATES v. BROWN
rad, Jr., United States Attorney, Jack M. Knight, Jr., Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sonia Lorena Brown appeals her conviction and 121 month sen-
tence imposed by the district court following her guilty plea to a sin-
gle count of conspiracy to distribute cocaine in violation of 21 U.S.C.
§§ 841, 846 (2000). Having reviewed each of Brown’s claims in turn
and finding no reversible error, we affirm.
Brown first claims that the district court erred by not adjusting her
sentence downward for acceptance of responsibility or under the
safety valve provision of the sentencing guidelines. See 18 U.S.C.
§ 3553(f) (2000); U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(6),
3E1.1, 5C1.2 (2001). These claims, in essence, attack the district
court’s determination that Brown was not truthful with the Govern-
ment in regard to her role in the offense. We review the district
court’s application of the Sentencing Guidelines giving due regard to
the opportunity of the trial court to judge the credibility of witnesses.
18 U.S.C. § 3742(e) (2000). Credibility determinations receive defer-
ence unless they are without support in the record. United States v.
Brown, 944 F.2d 1377, 1379-80 (7th Cir. 1991). Here, the district
court had ample opportunity to observe both Brown’s demeanor and
the substance of her testimony. The court also had an opportunity to
consider the allegations of the Government and Brown in the numer-
ous filings that preceded the sentencing hearing itself. Accordingly,
we cannot say that the district court clearly erred in its factual finding
that Brown had been untruthful. On the basis of this finding, it fol-
lows that Brown was ineligible for either an acceptance of responsi-
bility reduction or for application of the safety valve. These claims are
denied.
UNITED STATES v. BROWN 3
Brown next claims that the district court erred in failing to award
a downward departure. In the absence of a plea agreement providing
otherwise, the Government’s decision not to move for a departure is
reviewable only if the Government’s decision is based on an unconsti-
tutional motive or is not related to a legitimate government purpose.
See Wade v. United States, 504 U.S. 181, 185-86 (1992). A district
court’s decision not to depart is not reviewable on appeal unless the
court mistakenly believed it lacked the authority to depart. United
States v. Edwards, 188 F.3d 230, 238-39 (4th Cir. 1999). There has
been no showing of either prerequisite in this matter. Accordingly, the
district court’s refusal to award a downward departure is not review-
able.
Brown’s final claim is that the district court failed to find a viola-
tion of her Sixth Amendment right to counsel based on an interview
conducted by the Government outside of the presence of her counsel.
Even if Brown could demonstrate error in the Government’s actions,
she has demonstrated no prejudice because nothing she said at the
second interview was used against her. Absent any perceptible show-
ing of harm, we conclude that error, if any, was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967).
We affirm the judgment of the district court. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED