United States v. Smith ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4700
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER DAMEON SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1051)
Submitted: September 28, 2005 Decided: October 26, 2005
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James W. Bannister, BANNISTER & WYATT, L.L.C., Greenville, South
Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Christopher Dameon Smith appeals the 120-month sentence
imposed after he pled guilty to conspiracy to distribute and to
possess with intent to distribute five grams or more of actual
methamphetamine, more than fifty grams of a mixture or substance
containing a detectable amount of methamphetamine, and a quantity
of methylenedioxy-methamphetamine, all in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (2000). Smith’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there were no meritorious issues for appeal, yet objecting to his
two-level enhancement for possession of a firearm under Blakely v.
Washington, 542 U.S. 296 (2004). Because our review of the record
discloses no reversible error, we affirm Smith’s conviction and
sentence.
The presentence report attributed 397.05 kilograms of
marijuana, or a base level offense of twenty-six, pursuant to the
U.S. Sentencing Guidelines Manual (“USSG”) § 2D1.1(c)(7) (2002), to
Smith. A two-level enhancement was applied for possession of a
firearm, see USSG § 2D1.1(b)(1), and a three-level reduction was
applied for acceptance of responsibility, see USSG § 3E1.1(a),(b).
Smith did not plead guilty to the facts that would support the
enhancement for possession of the firearm. Thus, based on a total
offense level of twenty-five and a criminal history category of IV,
the recommended guideline range for imprisonment was 84 to 105
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months. However, at sentencing, Smith admitted to a predicate
offense that subjected him to a mandatory minimum sentence of 120
months under the provisions of 21 U.S.C. § 851 (2000). Smith’s
guideline range therefore became the statutory minimum of 120
months. See 21 U.S.C. § 841(b)(1)(B) (2000). Smith was sentenced
to the statutory minimum of 120 months. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 851 (2000).
Although Smith’s sentencing enhancement for possession of
a firearm did not alter the statutory sentence, Smith now objects
on the basis that the enhancement precluded him from qualifying for
a possible reduction in his sentence through the completion of a
drug treatment program offered by the Bureau of Prisons. The
Supreme Court has concluded that the “Bureau [of Prisons] may
categorically exclude prisoners based on their preconviction
conduct.” Lopez v. Davis, 531 U.S. 230, 244 (2001). Specifically,
the BOP has discretionary authority to deny inmates with a two-
point weapons enhancement the one-year sentence reduction after
successfully completing a Residential Drug Abuse Program. The two-
level weapons enhancement, however, did not increase Smith’s
offense level or sentence imposed and thus is not affected by
United States v. Booker, 125 S. Ct. 738 (2005). See id., 125 S.
Ct. at 748 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (“[A]ny fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
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proved beyond a reasonable doubt.”). Accordingly, we find that
this argument is without merit.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Smith’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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