United States v. Warren Forney , 442 F. App'x 27 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4159
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WARREN EDWARD FORNEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00107-MR-3)
Submitted: June 29, 2011 Decided: August 4, 2011
Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Reita P. Pendry, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Warren Edward Forney pleaded guilty, pursuant to a
plea agreement, to one count of conspiracy to possess with
intent to distribute at least fifty grams of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). The district
court sentenced Forney to 180 months in prison followed by five
years of supervised release and levied a $100 special
assessment.
On appeal, Forney’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), in which she states
that she could find no meritorious issues for appeal. In her
Anders brief, counsel calls four issues to our attention.
Forney was then appointed new counsel, who, with leave, filed a
supplemental brief setting forth two additional issues. Forney
himself then filed a pro se supplemental brief outlining six
issues for our review. The Government elected not to file a
response. Our appraisal of the issues brought before us, as
well as the record as a whole, discloses no meritorious claims
to relief. We therefore affirm.
Several of Forney’s claims were broadly stated without
specific support in the facts or in the record. These claims
merit only passing mention. Our review of the record leads us
to conclude that the district court complied with Federal Rule
of Criminal Procedure 11 in accepting Forney’s plea, which was
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knowing and voluntary. We have located no conclusive instances
of ineffective assistance of counsel cognizable on direct
review. Likewise, we have found no prosecutorial misconduct or
breach of the plea agreement on the part of the Government. The
record squarely rebuts Forney’s claim that the district court
denied him an opportunity to allocute. Forney’s claims with an
arguable basis in fact or in law are addressed below.
This court reviews a sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). The first step in this review requires us to
inspect for procedural reasonableness by ensuring that the
district court committed no significant procedural errors, such
as improperly calculating the Guidelines range or failing to
consider the 18 U.S.C. § 3553(a) (2006) factors. United
States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010). We
then consider the substantive reasonableness of the sentence
imposed, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51. We shall presume that a sentence within a
properly-calculated Guidelines range is reasonable. United
States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
Forney alleges that the district court improperly
assigned him a three offense level enhancement for his
managerial role in the offense under the U.S. Sentencing
Guidelines Manual § 3B1.1(b) (2008). In assessing whether a
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sentencing court properly applied the Guidelines, we review the
district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Chacon, 533 F.3d 250, 253
(4th Cir. 2008). Based on the factual information in the
presentence investigation report, which by the parties’
stipulation formed the factual basis for Forney’s conviction, we
find that the managerial enhancement was warranted. The
evidence before the court supported a finding that Forney had at
least five drug dealers working below him. Thus, Forney’s claim
that the court improperly calculated his offense level lacks
merit.
Forney also challenges the Government’s failure to
file an amended 21 U.S.C. § 851 (2006) information after the
parties agreed that one of the two notices of Forney’s prior
felony drug convictions would be withdrawn. The parties
reflected their agreement by an addendum to the plea agreement,
but the actual § 851 information was never revised. Forney does
not dispute that the district court properly considered only one
previous conviction in fixing his sentence. Rather, Forney
claims that he was prejudiced because he lacked notice as to
which conviction the Government withdrew. Forney, however, does
not claim that either of the previous convictions are invalid.
Given his notice of the two previous convictions set forth in
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the Government’s original § 851 information, we do not find that
Forney suffered any prejudice.
Our review of the record did reveal a failure by the
district court to inquire of Forney as to whether he affirmed or
denied his previous felony drug convictions as required by 21
U.S.C. § 851(b). Even if properly questioned, however, Forney
would have been unable to challenge the validity of his previous
convictions because the convictions occurred more than five
years before the filing of the information. 21 U.S.C. § 851(e).
The district court’s error was, therefore, harmless. See United
States v. Henderson, 613 F.3d 1177, 1185 (8th Cir. 2010)
(finding district court’s failure to inquire about convictions
that were more than five years old to be harmless error), cert.
denied, 131 S. Ct. 2151 (2011); United States v. Baugham, 613
F.3d 291, 296 (D.C. Cir. 2010) (same), cert. denied, 131 S. Ct.
1510 (2011); United States v. Hill, 142 F.3d 305, 313 (6th Cir.
1998) (same); United States v. Nanez, 694 F.2d 405, 413 (5th
Cir. 1982) (“Neither the enhancement statute nor reason requires
a trial court to adhere to the rituals of § 851(b) where a
defendant, as a matter of law, is precluded from attacking the
conviction forming the basis of the enhancement information.”).
Forney seeks resentencing under the provisions of the
Fair Sentencing Act of 2010, Pub. L. No. 111-220, claiming it
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may be applied retroactively. * We recently foreclosed this
argument for offenders, like Forney, who were sentenced before
the effective date of the Act. United States v. Bullard,
F.3d , No. 09-5214, 2011 WL 1718894 at *9-11 (4th Cir.
May 6, 2011) (“We agree with all eight circuits that have ruled
on the issue that the FSA contains no express statement of
retroactivity, nor can any such intent be inferred from its
language.”).
Forney similarly points to a post-sentencing amendment
to the Guidelines as a basis for vacation of his sentence. “In
general, a sentencing court is obliged to ‘use the Guidelines
Manual in effect on the date that the defendant is sentenced.’”
United States v. Rooks, 596 F.3d 204, 213 (4th Cir.) (quoting
USSG § 1B1.11(a)), cert. denied, 131 S. Ct. 148 (2010). We do
not find that amendment 742, the elimination of the recency
enhancement from § USSG § 4A1.1(e), was meant to apply
retroactively. Therefore, no resentencing is warranted.
*
We acknowledge the Attorney General’s recent decision with
respect to the Fair Sentencing Act (FSA), conceding that the FSA
is retroactively applicable to all cases where the sentencing
occurred after August 3, 2010, even when the offense conduct,
and the conviction occurred prior to August 3, 2010.
Mr. Forney’s sentence occurred on January 22, 2010, and
thus, the Attorney General’s decision is not applicable in this
case.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Forney’s conviction and sentence. This
court requires that counsel inform Forney, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Forney 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 Forney.
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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