United States v. Carter , 150 F. App'x 230 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4050
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY EDWARD CARTER, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-320)
Submitted: September 2, 2005 Decided: October 6, 2005
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jill E. M. HaLevi, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. John Charles Duane, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry Edward Carter, Jr., appeals his convictions and
sentence for one count of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and one
count of possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
Carter’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in her opinion,
there are no meritorious issues for appeal. Although concluding
that such allegations lacked merit, counsel asserts that the
district court erred in denying Carter’s motion to suppress
evidence and in its consideration of dismissed counts as relevant
conduct in determining Carter’s sentence. Counsel also asserts
that Carter’s sentence violates Blakely v. Washington, 542 U.S. 296(2004). Carter filed a pro se supplemental brief. Finding no
reversible error, we affirm.
In the Anders brief, counsel asserts that the district
court erred in denying Carter’s motion to suppress evidence based
on Fourth, Fifth, and Sixth Amendment violations. We find that the
district court did not clearly err in finding that there was
reasonable suspicion that criminal activity was afoot as required
under Terry v. Ohio, 392 U.S. 1, 30 (1968). We further find that
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the district court did not clearly err in finding no evidence to
support Carter’s claims that he did not receive Miranda* warnings.
Counsel also questions the court’s consideration of
dismissed counts as relevant conduct in its sentencing
determination. We find that the court’s consideration of Carter’s
previous charges of possession of a firearm by a convicted felon
was proper. We further find that even if Carter’s sentence
violated the Sixth Amendment, that error was harmless. The
harmless error standard permits an error at sentencing to be
disregarded if the reviewing court is certain that any such error
“did not affect the district court’s selection of the sentence
imposed.” Williams v. United States, 503 U.S. 193, 203 (1992).
Here, because the district court explained that it would impose an
alternate discretionary sentence that was identical to the
guideline sentence, the error inherent in the application of the
guidelines as mandatory did not affect the court’s ultimate
determination of the sentence, nor Carter’s substantial rights.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Carter’s convictions and sentence.
This court requires that counsel inform her 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,
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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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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