United States v. Cherry , 314 F. App'x 527 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4392
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY CHERRY, III,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00797-TLW-1)
Submitted: September 11, 2008 Decided: September 15, 2008
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Rose Mary Sheppard
Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny Cherry, III, pled guilty to being a felon in
possession of a weapon in violation of 18 U.S.C. § 922(g) (2000).
He was sentenced to thirty months of imprisonment, the bottom of
his properly-calculated advisory Sentencing Guidelines range. On
appeal, counsel has filed a brief under Anders v. California, 386
U.S. 738 (1967), alleging that there are no meritorious claims on
appeal but raising the following issues: (1) whether Cherry’s
guilty plea was valid under Fed. R. Crim. P. 11 and (2) whether
Cherry’s third South Carolina conviction for criminal domestic
violence was a proper predicate felony for purposes of § 922(g).
For the reasons that follow, we affirm.
First, our review of the plea hearing reveals that the
district court complied with Rule 11 and that Cherry knowingly and
voluntarily pled guilty. Thus, we find no reversible error for
this claim. United States v. Martinez, 277 F.3d 517, 525-26 (4th
Cir. 2002) (holding that when a defendant does not seek to withdraw
his guilty plea, Rule 11 errors are reviewed for plain error). The
second claim also fails, as the record reveals that Cherry also had
a South Carolina conviction for possession of crack cocaine, which
has a maximum sentence of five years. Moreover, counsel concedes
that Cherry’s claim regarding the criminal domestic violence
conviction would fail on the merits, in any event, under the
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Supreme Court’s recent opinion in Burgess v. United States, 128 S.
Ct. 1572, 1577 (2008).
We have examined the entire record in this case in
accordance with the requirements of Anders, and find no meritorious
issues for appeal. Accordingly, we affirm. 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
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