United States v. Truesdale ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5086
ALVIN B. TRUESDALE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-92-34)
Submitted: February 13, 1996
Decided: March 6, 1996
Before HAMILTON and WILLIAMS, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Kenneth P. Andresen, Charlotte, North Carolina, for Appellant.
Mark T. Calloway, United States Attorney, Kenneth D. Bell, First
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Unpublished opinions are not binding precedent in this circuit.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:
Appellant, Alvin Truesdale, was convicted for violating 21
U.S.C.A. §§ 841, 846, 848 (West Supp. 1995), and 18 U.S.C.A.
§§ 924(c), 1956 (West Supp. 1995), in the course of his involvement
and orchestration of a major cocaine network. On a prior appeal, this
court affirmed his conviction, but remanded the case to the district
court with instructions to make further factual findings and for resen-
tencing. The district court held a resentencing hearing and entered the
same sentence as originally imposed. Truesdale's attorney has filed a
brief in accordance with Anders v. California , 386 U.S. 738 (1967),
arguing that the district court made inadequate findings on remand as
to the amount of cocaine properly attributable to Truesdale and assert-
ing that there are no meritorious issues for appeal. Truesdale filed an
additional brief arguing that the district court made inadequate find-
ings as to the amount of cocaine and whether two prior offenses were
properly included in his criminal history. Truesdale asserts that the
court was biased and improperly imposed a fine on resentencing.
Finding no error, we affirm.
On Truesdale's first appeal, this court affirmed his convictions and
remanded to the district court with instructions to vacate Truesdale's
conspiracy conviction because it was based on the same events as the
continuing criminal enterprise conviction. United States v. McManus,
23 F.3d 878, 888 (4th Cir. 1994). This court also instructed the district
court to make specific findings with regard to Truesdale's objections
to the presentence investigation report concerning the amount of
cocaine attributable to him and whether two criminal convictions
were properly included in the determination of his criminal history
category. Id.At resentencing, the district court dismissed the conspiracy convic-
tion and "adopt[ed] the presentence report plus its own memory of the
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extensive amount of cocaine involved in this case, and [found]
between 50 and 150 kilograms of cocaine to be involved." The court
found that the two prior convictions were properly included in deter-
mining Truesdale's criminal history category. The court then imposed
sentence upon Truesdale identical to the sentence originally imposed.
Although at the sentencing hearing the court stated that it would
impose a $5000 fine, in entering the judgment and commitment order,
the district court struck the imposition of the fine because no fine was
imposed at the original sentencing.
When a defendant alleges a factual inaccuracy in the presentence
report, the district court must make a finding as to that fact or deter-
mine that a finding is not necessary because the challenged fact will
not affect sentencing. Fed. R. Crim. P. 32. If the court's finding coin-
cides with the presentence report, adoption of the facts presented in
the presentence report satisfies Rule 32. United States v. Morgan, 942
F.2d 243, 245 (4th Cir. 1991).
Truesdale argued that the trial testimony did not support the con-
clusion that the amount of drugs involved in Truesdale's drug organi-
zation was between 50 and 150 kilograms. He argued that the total
involved amounted to less than 12 kilograms. However, the district
court, relying on its recollection of the amount of cocaine involved,
adopted the amount determined in the presentence report and found
that between 50 and 150 kilograms were properly attributable and
foreseeable to Truesdale.
We find that the district court made adequate factual findings as
required by Fed. R. Crim. P. 32 and as directed by our order of
remand. Further, the district court's conclusion that 50 to 150 kilo-
grams was properly attributable to Truesdale was not clearly errone-
ous. See United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991).
One member of the organization testified that he transported cocaine
from Florida to Charlotte every other week between 1987 and 1989
and delivered between two and three kilograms of cocaine per trip to
Alvin Truesdale. The district court found that approximately 35 trips
were made and that between 70 and 105 kilograms of cocaine were
brought into Truesdale's organization. Also, on our previous review
of this case, we upheld the district court's attribution of between 50
and 150 kilograms of cocaine to Tennison Harris--Truesdale's asso-
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ciate and subordinate in the organization. McManus, 23 F.3d at 886-
87.
Truesdale also contends that the district court failed to make ade-
quate findings as to whether his October 1988 conviction for assault
on a police officer was part of the continuing criminal enterprise. The
presentence report notes that there was no information connecting the
offenses. Also, Truesdale failed to present any evidence that the
assault upon the officer was in furtherance of his cocaine organiza-
tion.
During the resentencing hearing, the district court determined that
this conviction was includable in Truesdale's criminal history cate-
gory because it involved a "sentence previously imposed . . . for con-
duct not part of the instant offense." United States Sentencing
Commission, Guidelines Manual, § 4A1.2(a)(1) (Nov. 1994). This
factual finding was adequate and was not clearly erroneous. See
Hicks, 948 F.2d at 881; Morgan, 942 F.2d at 245.
Truesdale also contends that the district court erred in including his
September 1988 charge for carrying a concealed weapon because a
prayer for judgment continued was entered in January 1989. Section
4A1.2(f) of the Sentencing Guidelines requires that diversionary dis-
positions (except for diversion from juvenile court) which result from
a finding of guilt or an admission of guilt be counted as a prior sen-
tence under U.S.S.G. § 4A1.1(c). In this case, Truesdale entered a
plea of not guilty, but he was found guilty. Under U.S.S.G.
§ 4A1.2(f), this offense was properly included. During the resentenc-
ing hearing, the district court reviewed Truesdale's arguments, found
that the offense was includable, and explained the application of the
Guidelines to this offense. This finding was adequate and was not
clearly erroneous. See Hicks, 948 F.2d at 881; Morgan, 942 F.2d at
245.
Truesdale's argument that the offense of carrying a concealed
weapon was part of the offense conduct underlying the continuing
criminal enterprise conviction--raised for the first time on this appeal
--is not properly before the Court. See United States v. Maxton, 940
F.2d 103, 105 (4th Cir.), cert. denied, 502 U.S. 949 (1991).
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Truesdale argues that the district court erred in imposing a fine at
resentencing when no fine was imposed during his original sentenc-
ing. Because the district court struck the imposition of the $5000 fine
on the judgment and commitment order, this issue lacks merit.
In conclusion, we deny Truesdale's motion for appointment of new
counsel and affirm his sentence. In light of this disposition, we need
not address Truesdale's request that this court reassign his case to a
different district court judge upon remand. 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 dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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