United States v. Elliott , 161 F. App'x 233 ( 2005 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 05-4566
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    JAMES GREGORY ELLIOTT,
    Defendant - Appellant.
    Appeal from the United States District Court for the Northern
    District of West Virginia, at Elkins. Robert E. Maxwell, Senior
    District Judge. (CR-03-15-REM)
    Submitted: December 15, 2005              Decided: December 20, 2005
    Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
    Virginia, for Appellant.   Stephen Donald Warner, OFFICE OF THE
    UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    James    Gregory   Elliott    appeals     his    conviction      and
    240-month sentence imposed after he pled guilty to operating a
    crack house, in violation of 
    21 U.S.C. § 856
    (a) (2000).               Elliott’s
    counsel filed a brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967), raising several issues but stating that, in his view,
    there are no meritorious issues for appeal.            Elliott was informed
    of his right to file a pro se supplemental brief but has not done
    so.   We affirm.
    Counsel questions the district court’s compliance with
    Fed. R. Crim. P. 11, in accepting Elliott’s guilty plea.               Because
    Elliott did not move in the district court to withdraw his guilty
    plea, any error in the Rule 11 hearing is reviewed for plain error.
    United States v. Martinez, 
    277 F.3d 517
    , 525 (4th Cir. 2002).                 Our
    review of the plea colloquy leads us to conclude that the district
    court fully complied with the mandates of Rule 11 in accepting
    Elliott’s    guilty    plea.    Thus,     there   is   no    error,   plain   or
    otherwise.
    Next, counsel questions whether the district court erred
    in determining the amount of drugs attributable to Elliott, in
    concluding that Elliott possessed a firearm during the commission
    of the offense, and in declining to award a downward adjustment for
    acceptance of responsibility. The district court sentenced Elliott
    after the Supreme Court decided United States v. Booker, 543 U.S.
    - 2 -
    220 (2005), and properly calculated Elliott’s total offense level
    and criminal history category to establish an advisory sentencing
    guideline range of 324 to 405 months of imprisonment. However, the
    statutory maximum sentence applicable to Elliott’s offense of
    conviction is twenty years, see 
    21 U.S.C. § 856
    (b) (2000); thus,
    the twenty-year statutory maximum became the applicable guideline
    range.    U.S. Sentencing Guidelines Manual § 5G1.1(a) (2003).                       We
    therefore find no error in Elliott’s sentence.
    In accordance with Anders, we have reviewed the entire
    record      for     any        meritorious        issues       and    have      found
    none.     Accordingly, we affirm Elliott’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.       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
    - 3 -
    

Document Info

Docket Number: 05-4566

Citation Numbers: 161 F. App'x 233

Judges: Michael, Duncan, Hamilton

Filed Date: 12/20/2005

Precedential Status: Non-Precedential

Modified Date: 11/5/2024