United States v. Bell , 88 F. App'x 569 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4310
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
COREY LEON BELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-02-524)
Submitted: November 19, 2003 Decided: February 18, 2004
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Lee Ellis Berlinsky, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Corey Leon Bell pleaded guilty to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (2000), and one count of using and
carrying a firearm during a drug trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A)(i) (2000). The presentence investigation
report recommended that Bell’s base offense level be increased
pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(c)(1).
Section 2K2.1(c)(1) cross-referenced to USSG § 2X1.1, which
increased Bell’s base offense level for his use of the firearm in
connection with his intended distribution of five grams or more of
cocaine base. The district court agreed with the PSR and adopted
its findings. The court sentenced Bell to 130 months of
imprisonment, to be followed by a five-year term of supervised
release.
Bell’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but raising one issue: whether the
district court erred in its application of the sentencing
guidelines. Specifically, counsel questioned the propriety of
cross-referencing to a charge for which Bell had not been
convicted. Bell was advised of his right to file a pro se
supplemental brief, but he has declined to do so.
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We have reviewed the record and conclude that the
district court properly applied the sentencing guidelines.
Although this court has no published authority on the subject, it
is generally accepted that district courts may refer to offenses of
which the defendant has not been convicted when cross-referencing
from USSG § 2K2.1(c)(1) to USSG § 2X1.1. See, e.g., United States
v. O’Flanagan, 339 F.3d 1229, 1234 (10th Cir. 2003); United States
v. Drew, 200 F.3d 871, 879 (D.C. Cir. 2000).
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Bell’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
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