United States v. Hudgens ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5177
DENNIS NATHANIEL HUDGENS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-94-473)
Submitted: January 23, 1996
Decided: February 14, 1996
Before WIDENER and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Timothy L. Brown, Greenville, South Carolina, for Appellant. David
Calhoun Stephens, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dennis Nathaniel Hudgens, by counsel, appeals his conviction
alleging that the district court should have ordered his federal sen-
tence to run concurrently with a state sentence he was actively serving
for common law robbery. We affirm.
Hudgens, a low-level street dealer of crack cocaine, on two occa-
sions sold approximately 2.46 grams of crack cocaine to undercover
local and federal drug authorities. Hudgens cooperated early with the
local authorities and indicated his desire to also cooperate with the
federal officials. Hudgens pled guilty to a one-count indictment,
which charged him with conspiracy with the intent to distribute crack
cocaine and with the distribution of crack cocaine, in violation of 21
U.S.C. §§ 841(a)(1) & 846 (1988).
During sentencing, because neither Hudgens nor his counsel
objected to the information or the recommendations contained in the
presentence report, the district court adopted the report as factually
accurate. The district court then determined that Hudgens had a total
offense level of seventeen and a criminal history category of III,
which resulted in a sentencing guideline range of thirty to thirty-seven
months imprisonment, with three years supervised release.
Hudgens requested that his sentence be ordered to run concurrently
with the state sentence for robbery that he was already serving. The
district court sentenced Hudgens to thirty months imprisonment and
three years supervised release, and ordered the sentence not to run
concurrently with Hudgens's state sentence.
Hudgens's counsel filed a brief in this court pursuant to Anders v.
California, 386 U.S. 738 (1967), raising only the issue of whether the
district court abused its discretion by not ordering the two sentences
to run concurrently.
We find that Hudgens's sentence was properly imposed in accor-
dance with both the appropriate sentencing guidelines and the statu-
2
tory limitations. When imposing a term of imprisonment on a
defendant who is already subject to an undischarged term of impris-
onment, the sentencing court has the discretion to run the terms con-
currently or consecutively. 18 U.S.C.A. § 3584(a) (West 1985).
Further, we have no jurisdiction to review the district court's decision
to fix a sentence at any point within Hudgens's guideline range.
United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994).
In accordance with Anders, this court has thoroughly examined the
entire record for any potentially meritorious issues for appeal and has
found none. We therefore affirm Hudgens'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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3