United States v. Byrd , 52 F. App'x 205 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4332
HERMAN JUNIOR BYRD,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4371
ROGER BYRD,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-97-109-V)
Submitted: November 5, 2002
Decided: December 4, 2002
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina; Eben T. Rawls III, RAWLS, DICKINSON & SCHEER, P.A.,
2 UNITED STATES v. BYRD
Charlotte, North Carolina, for Appellants. Gretchen C. F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Herman Junior Byrd ("H. Byrd") and Roger Byrd ("R. Byrd")
appeal their sentences imposed after this court remanded for resen-
tencing in accordance with 21 U.S.C. § 841(b)(1)(C) (2000). The
Byrds’ counsel have filed a brief under Anders v. California, 386 U.S.
738 (1967), certifying there are no meritorious issues. R. Byrd has
filed a pro se supplemental brief raising three non-meritorious issues.
H. Byrd was notified of his right to file a pro se supplemental brief
but has not done so. We affirm.
The Byrds were convicted of one count of conspiracy to possess
with intent to distribute and distribute a quantity of cocaine and
cocaine base in violation of 21 U.S.C. § 846 (2000). H. Byrd was con-
victed of one count of possession with intent to distribute cocaine and
cocaine base in violation of 21 U.S.C. § 841 (2000), and 18 U.S.C.
§ 2 (2000). This Court affirmed the convictions and sentences in an
opinion issued August 9, 2000. Subsequently, this Court granted the
Byrds’ petitions for rehearing and placed the appeals in abeyance
pending United States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en
banc), cert. denied, 122 S. Ct. 2296 (2002), and United States v.
Perez, 2001 WL 37520 (4th Cir. Jan. 16, 2001) (No. 00-4036)
(unpublished). On rehearing, this Court affirmed the convictions but
vacated the sentences imposed on R. Byrd and H. Byrd and remanded
with instructions that those sentences be imposed in accordance with
§ 841(b)(1)(C). See United States v. Byrd, 2002 WL 50592 (4th Cir.
Jan. 15, 2002) (Nos. 99-4203/4204) (unpublished).
At resentencing, H. Byrd was sentenced to 480 months’ imprison-
ment, or 240 months’ imprisonment for each conviction to run con-
UNITED STATES v. BYRD 3
secutively, because the sentencing guidelines range was life
imprisonment. "The Guidelines provide that in the case of multiple
convictions, ‘if the total punishment mandated by the guidelines
exceeds the highest statutory maximum, the district court must
impose consecutive terms of imprisonment to the extent necessary to
achieve the total punishment.’" United States v. Roberts, 262 F.3d
286 (4th Cir. 2001), cert. denied, 122 S. Ct. 1548 (2002) (quoting
United States v. White, 238 F.3d 537, 543 (4th Cir. 2001)). Thus, H.
Byrd’s sentence for either conviction was not in excess of the statu-
tory maximum authorized under § 841(b)(1)(C). However, the written
amended judgment authorized a term of imprisonment of 480 months’
imprisonment to run concurrently. Although we affirm the sentence
of 480 months’ imprisonment, we instruct the district court to modify
the written judgment to reflect the oral sentence. Rakes v. United
States, 309 F.2d 686, 687 (4th Cir. 1962).
R. Byrd’s 360-month term of imprisonment was authorized under
§ 841(b)(1)(C) because R. Byrd had a prior drug felony conviction.
R. Byrd’s pro se supplemental brief raises issues that are without
merit because they were foreclosed by this Court’s opinion affirming
the conviction.
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
the sentences. We instruct the district court to amend H. Byrd’s
amended written judgment so it reflects the sentence imposed orally
at resentencing. This court requires that counsel inform their clients,
in writing, of their right to petition the Supreme Court of the United
States for further review. If either 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.
No. 02-4332 - AFFIRMED
No. 02-4371 - AFFIRMED