United States v. Prince ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4021
ROBERT DANIEL PRINCE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-94-193)
Submitted: December 17, 1998
Decided: January 5, 1999
Before WILKINS, NIEMEYER, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Herbert W. Louthian, Deborah R.J. Shupe, LOUTHIAN &
LOUTHIAN, Columbia, South Carolina, for Appellant. Sean Kittrell,
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Unpublished opinions are not binding precedent in this circuit.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).
OPINION
PER CURIAM:
Robert Daniel Prince was originally sentenced to a term of 225
months imprisonment upon his conviction of two federal firearm
offenses, each carrying a statutory maximum sentence of 120 months.
His conviction and sentence were affirmed on appeal. See United
States v. Prince, No. 95-5180 (4th Cir. Aug. 23, 1996) (unpublished).
Prince later filed a motion under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998), contending that the sentence on each count exceeded the
statutory maximum sentence. The district court granted the motion
and resentenced Prince to 120 months imprisonment on the first count
and eighty months on the second count, with the sentences to run con-
secutively. The total sentence of 200 months was within the guideline
range of 188-235 months.
Prince's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising one issue but stating that in
his view there are no meritorious issues. Prince has filed a pro se sup-
plemental brief raising an issue which was decided in the first appeal.
After a review of the record, we affirm.
In the Anders brief, defense counsel suggests that, in resentencing
Prince, the district court was bound by its original decision to impose
concurrent sentences and thus could not impose a sentence of more
than 120 months imprisonment. We find no error. The district court
correctly applied U.S. Sentencing Guidelines Manual § 5G1.2(d)
(1995), which directs the district court to impose a consecutive sen-
tence when the sentence for the count with the highest statutory maxi-
mum is less than the total punishment, i.e., the sentence the court has
chosen within the guideline range. See United States v. Young, 916
F.2d 147, 151-52 (4th Cir. 1990) (grouped counts may merit consecu-
tive sentences where the statutory maximum on all counts is less than
the total punishment); United States v. Watford , 894 F.2d 665, 669
(4th Cir. 1990) (sentences for two counts grouped together should run
concurrently "except to the extent necessary to produce a sentence
within the appropriate sentencing guidelines range."). See also United
States v. Moreno-Hernandez, 48 F.3d 1112, 1116-17 (9th Cir. 1995)
2
(affirming consecutive sentences imposed on remand under USSG
§ 5G1.2(d)).
In his pro se supplemental brief, Prince contests the district court's
decision, at the original sentencing, to enhance his sentence for pos-
session of a firearm in connection with the commission of another fel-
ony. See USSG § 2K2.1(b)(5). He maintains that the enhancement did
not apply because he was not convicted of a felony drug offense.
However, while Prince claimed at the original sentencing that he
merely possessed marijuana, the district court found that he was
engaged in drug trafficking. On appeal, we held that the court's fac-
tual finding was not clearly erroneous. The issue Prince seeks to raise
has thus been decided.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm the convic-
tion 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 represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
3