United States v. Butler , 49 F. App'x 490 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4755
VAUGHAN DIEGO BUTLER, a/k/a Q,
a/k/a Keith Butts,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-01-51)
Submitted: October 24, 2002
Decided: November 19, 2002
Before WIDENER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael R. Cline, MICHAEL R. CLINE LAW OFFICE, Charleston,
West Virginia, for Appellant. Kasey Warner, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee.
2 UNITED STATES v. BUTLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Vaughan Diego Butler appeals his conviction and 210-month sen-
tence for aiding and abetting the possession with intent to distribute
more than fifty grams of crack cocaine, in violation of 18 U.S.C. § 2(2000), and 21 U.S.C. § 841 (2000). Butler’s counsel has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), assert-
ing that the Government failed to move for a reduction in Butler’s
sentence under Fed. R. Crim. P. 35(b), based upon substantial assis-
tance but stating that, in his view, there are no meritorious issues on
appeal. Butler has filed a pro se supplemental brief raising three
issues. We affirm.
Counsel contends that the Government should have filed a Rule
35(b) motion based upon Butler’s substantial assistance. Counsel
acknowledges that the Government may file a Rule 35(b) motion
within one year after Butler was sentenced and may consider assis-
tance provided before sentencing. To the extent that counsel contends
that the Government should have moved at sentencing for a down-
ward departure under U.S. Sentencing Guidelines Manual § 5K1.1,
p.s. (2000), based upon substantial assistance, the Government was
not obligated under the plea agreement to do so. Nor did Butler allege
that the Government’s failure to file a § 5K1.1 motion was based
upon an unconstitutional motive or was not related to a legitimate
government end. United States v. LeRose, 219 F.3d 335, 341-42 (4th
Cir. 2000) (citing Wade v. United States, 504 U.S. 181, 185-86
(1992)). We therefore find that Butler is not entitled to relief on this
claim.
In his pro se supplemental brief, Butler contends that the district
court erred in applying a two-level enhancement under USSG
§ 2D1.1(b)(1), for possession of a weapon. We find that the district
court did not clearly err in determining that it was not "clearly
UNITED STATES v. BUTLER 3
improbable that the weapon was connected with the offense." USSG
§ 2D1.1(b)(1), comment. (n.3); United States v. McAllister, 272 F.3d
228, 234 (4th Cir. 2001) (stating standard of review).
Next, Butler contends that, at sentencing, the district court violated
the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000),
by determining drug quantity and the applicability of the weapon
enhancement by a preponderance of the evidence. Because Butler did
not raise an Apprendi argument in the district court, we review his
claim for plain error and find none. United States v. Carter, 300 F.3d
415, 428-29 (4th Cir. 2002) (discussing standard). Butler’s 210-month
sentence falls within the statutory maximum set forth in 21 U.S.C.
§ 841(b)(1)(A)(ii) and, therefore, does not implicate Apprendi. United
States v. Angle, 254 F.3d 514, 518 (4th Cir.) (en banc), cert. denied,
122 S. Ct. 309 (2001); United States v. Kinter, 235 F.3d 192, 199-202
(4th Cir. 2000) (holding that Apprendi does not apply to judge’s exer-
cise of discretion within statutory range, as long as sentence imposed
does not exceed statutory maximum), cert. denied, 532 U.S. 937(2001).
Finally, Butler contends that the district court should not have
counted his sentence of one and a half to five years confinement for
a 1983 armed robbery conviction in the calculation of his criminal
history score because he was seventeen when he committed the
offense and because the conviction was more than fifteen years old.
We review a district court’s factual findings at sentencing for clear
error and its related legal conclusions, including the application of the
sentencing guidelines, de novo. United States v. Colton, 231 F.3d 890,
911 (4th Cir. 2000).
Section 4A1.2(d) of the sentencing guidelines governs offenses
committed before a defendant’s eighteenth birthday. That section pro-
vides that "[i]f the defendant was convicted as an adult and received
a sentence of imprisonment exceeding one year and one month," three
criminal history points should be added to his criminal history score.
USSG § 4A1.2(d)(1). We have held that for a conviction to be
counted under USSG § 4A1.2(d)(1) and Application Note 7, a defen-
dant "must have received an adult conviction and an adult sentence
of imprisonment exceeding one year and one month." United States
v. Mason, 284 F.3d 555, 560 (4th Cir. 2002). We conclude that Butler
4 UNITED STATES v. BUTLER
received an adult conviction and sentence for his armed robbery con-
viction and that, although Butler was seventeen at the time he com-
mitted the offense, the conviction was properly counted in his
criminal history score.
Butler’s claim that the armed robbery conviction was too old to be
counted also fails. Under USSG § 4A1.2(e)(1), any sentence of
imprisonment exceeding one year and one month that resulted in
defendant’s incarceration during the fifteen-year period predating the
commencement of the instant offense may be properly considered.
USSG § 4A1.2(e)(1). Butler was incarcerated for the 1983 armed rob-
bery conviction during the fifteen-year period preceding his January
2001 criminal conduct in the instant case. See United States v. Powell,
922 F.2d 212, 213-14 (4th Cir. 1991). We therefore find that the dis-
trict court did not err in assessing three criminal history points for this
conviction.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. We therefore affirm Butler’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 repre-
sentation. 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