United States v. Smarr , 234 F. App'x 119 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4102
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY LAMONT SMARR, a/k/a Sergeant Bean, a/k/a
James Earl Patterson, a/k/a Ricky Lamont
Taylor, a/k/a Rashard D. Brevard,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00293-JAB)
Submitted: July 11, 2007 Decided: July 20, 2007
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Smarr pled guilty to possession with intent to
distribute 207.6 grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A) (2000), and the district court found Smarr
qualified as a career offender pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1 (2005). After granting the
Government’s motion for downward departure based on Smarr’s
substantial assistance, the court sentenced Smarr to 148 months’
imprisonment. Smarr appealed.
Smarr’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), contending there are no
meritorious issues for appeal but asserting the district court
erroneously sentenced Smarr as a career offender. Smarr did not
file a pro se supplemental brief, despite being notified of his
right to do so. In its responding brief, the Government maintains
the court sentenced Smarr properly. Finding no reversible error,
we affirm.
We review “legal questions, including the interpretation
of the guidelines, de novo, while factual findings are reviewed for
clear error.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). A defendant is a
career offender if: (1) he was at least eighteen years old when
the instant offense was committed; (2) the instant offense is a
felony and is either a crime of violence or a drug offense; and
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(3) he has at least two prior felony convictions for crimes of
violence or drug offenses. See USSG § 4B1.1. Counsel asserts that
two offenses to which Smarr pled guilty in state court should not
count for career offender purposes. Counsel notes that Smarr
failed to appear for sentencing as to both offenses and that
according to his signed guilty plea colloquy, he could withdraw his
guilty pleas if he appeared at sentencing and the trial court
sentenced him above the prosecutor’s recommended sentence. Because
Smarr did not appear for sentencing, counsel asserts this condition
was never met and the guilty pleas cannot be considered in
determining career offender status. We reject this argument for
the reasons stated by the Government and the district court at
Smarr’s sentencing hearing.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Smarr’s conviction and sentence. This court
requires that counsel inform Smarr, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Smarr 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 Smarr.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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