United States v. Stacey ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4900
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL STACEY, a/k/a Sadat,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:03-cr-00134-MU)
Submitted: May 30, 2007 Decided: July 9, 2007
Before WILLIAMS, Chief Judge, and NIEMEYER and MOTZ, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
John H. Culver, III, KENNEDY COVINGTON LOBDELL & HICKMAN, LLP,
Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert,
United States Attorney, Karen S. Marston, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Stacey appeals his conviction and sentence to 262
months in prison and five years of supervised release after
pleading guilty to conspiracy to possess with intent to distribute
more than five hundred grams of cocaine and more than fifty grams
of cocaine base in violation of 21 U.S.C. §§ 841, 846 (2000).
Stacey’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting, in his opinion, there
are no meritorious grounds for appeal but raising the issues of
whether Stacey voluntarily and knowingly waived his right to appeal
his conviction and sentence and whether the issues he wishes to
raise are within the scope of his appellate waiver. The Government
has not filed an answering brief or otherwise sought to enforce the
appellate waiver. Stacey has filed a pro se supplemental brief
raising the issues of whether his appellate waiver precludes his
appeal and whether his sentence as a career offender violates the
Sixth Amendment. Finding no reversible error, we affirm.
When the Government seeks to enforce an appellate waiver,
and there is no claim that the Government breached its obligations
under the plea agreement, we will enforce the waiver if the record
establishes the defendant knowingly and intelligently agreed to
waive the right to appeal and the issue being appealed is within
the scope of the waiver. United States v. Blick, 408 F.3d 162,
168-69 (4th Cir. 2005). Because the Government has not sought to
- 2 -
enforce Stacey’s appellate waiver, we decline to consider whether
the waiver is dispositive of this appeal.
Stacey was sentenced prior to the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), based on
a mandatory application of the sentencing guidelines. He contends
that the district court committed error under the Sixth Amendment
by sentencing him as a career offender under U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1 (2003) without a jury finding
that his two prior convictions for the sale and delivery of cocaine
and for possession with intent to sell or deliver cocaine were
qualifying convictions. He further contends that if he had been
sentenced after Booker, he possibly would have received a lesser
sentence. Because Stacey raised no objections at his sentencing in
district court, we review his sentence for plain error. United
States v. Hughes, 401 F.3d 540, 540 (4th Cir. 2005).
In the plea agreement, Stacey stipulated he was a career
offender under USSG § 4B1.1 and that he was responsible for at
least 500 grams but less than 1.5 kilograms of cocaine base. The
probation officer determined Stacey was a career offender within
the meaning of USSG § 4B1.1 because (1) the instant offense was a
felony controlled substance offense; (2) Stacey was at least
eighteen years old when he committed the offense; and (3) his two
prior felony convictions for the sale or delivery of cocaine and
for possession with intent to sell or deliver cocaine were
- 3 -
controlled substance offenses. The probation officer determined
Stacey’s offense level was thirty-seven and his criminal history
category was VI pursuant to USSG § 4B1.1(b). The probation officer
applied a three-level reduction for acceptance of responsibility.
With a total offense level of thirty-four, Stacey’s sentencing
guideline range was 262 to 327 months in prison.
Neither party objected to the presentence report. At
sentencing, Stacey affirmed he had reviewed the report and his
counsel reaffirmed that he was a career offender. The Government
recommended a sentence at the low end of the guideline range, and
Stacey agreed to the recommendation. The district court adopted
the guideline calculations in the presentence report and sentenced
Stacey to the low end of his guideline range.
On appeal, Stacey contends his sentence violates the
Sixth Amendment because there was no jury finding that his prior
convictions were qualifying offenses. However, his stipulation was
an admission under Booker, and there was no Sixth Amendment error.
See United States v. Revels, 455 F.3d 448, 450 (4th Cir.), cert.
denied, 127 S. Ct. 299 (2006). Moreover, the facts necessary to
support the enhancement were inherent in Stacey’s prior convictions
and were not required to be found by the jury. See United States
v. Thompson, 421 F.3d 278, 286 (4th Cir. 2005), cert. denied, 126
S. Ct. 1463 (2006). Finally, Stacey’s claim for the first time on
appeal that his prior convictions were not felonies because they
- 4 -
involved less than one gram of cocaine is without merit. See State
v. Hyatt, 390 S.E.2d 355 (N.C. 1990). Although the district court
plainly erred by imposing a sentence under the mandatory
guidelines, there is no nonspeculative basis in the record for
concluding Stacey was prejudiced by the error. See United States
v. White, 405 F.3d 208 (4th Cir.), cert. denied, 126 S. Ct. 668(2005).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment. 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
- 5 -