United States v. Fisher ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5109
PERCY JOE FISHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
William L. Osteen, Sr., District Judge.
(CR-94-137)
Submitted: December 14, 1995
Decided: January 5, 1996
Before ERVIN, Chief Judge, and WIDENER and WILKINS,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James W. Swindell, SWINDELL & YOUNG, High Point, North Car-
olina, for Appellant. Walter C. Holton, Jr., United States Attorney,
Lisa B. Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Percy Joe Fisher pled guilty to conspiracy to possess cocaine
hydrochloride with intent to distribute and to manufacture cocaine
base (crack), 21 U.S.C.A. § 846 (West Supp. 1995). He was sen-
tenced to a term of 360 months. His attorney has filed a brief in accor-
dance with Anders v. California, 386 U.S. 738 (1967), raising three
issues but stating that, in his opinion, there are no meritorious issues
for appeal. Fisher has been informed of his right to file a pro se sup-
plemental brief, but has not filed a brief. Finding no reversible error
after a review of the entire record, we affirm the conviction and sen-
tence.
At Fisher's sentencing hearing, co-defendant Marie Junie Moise
testified that Fisher was a partner with her boyfriend, Aaron Green,
in a scheme to transport cocaine from New York to North Carolina,
where the cocaine was cooked into crack and distributed. Moise testi-
fied that various women transported the cocaine concealed under their
clothes, traveling by plane or train. Moise specifically recalled five
women who made a total of eleven trips to North Carolina and trans-
ported approximately 3.5 kilograms of cocaine. At least once, Fisher
traveled with one of the women. At other times he arranged for some-
one to meet them and sometimes it was he who paid them. Moise said
that Fisher and Green cooked, bagged, and distributed the crack. She
also testified that both men carried firearms and stored them at Fish-
er's grandmother's house, where Fisher lived at times. In a search of
that house, authorities recovered a small amount cocaine and four
handguns under the bed Fisher used.
In the Anders brief, counsel contests the 1.5 kilograms of crack
attributed to Fisher, USSG § 2D1.1,* the enhancement for possession
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1994).
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of firearms during the offense, USSG § 2D1.1(b)(1), and the adjust-
ment for being a manager or supervisor, USSG § 3B1.1(b). Each issue
raises a factual question which we review under the clearly erroneous
standard. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989).
The district court accepted the probation officer's conservative esti-
mate that 2.484 kilograms of cocaine hydrochloride could be attri-
buted to Fisher and that the amount of crack obtainable from the
powder cocaine was approximately 2.2 kilograms. This finding gave
Fisher a base offense level of 38 (1.5 kilograms or more of crack).
Even without the 496.6 grams which defense counsel contested at
sentencing, there was evidence that Fisher was responsible for more
than 1.5 kilograms. The district court's finding, therefore, was not
clearly erroneous. There was also evidence that Fisher managed or
supervised the women who transported cocaine and regularly carried
a firearm. The enhancements for role and for possession of firearms
in connection with the offense were thus amply supported.
In accordance with Anders, we have examined the entire record in
this case and find no meritorious issues for appeal. 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 peti-
tion 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 affirm the conviction and the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the record and briefs, and oral
argument would not aid the decisional process.
AFFIRMED
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