United States v. Glaspy ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4747
DESI ARNEZ GLASPY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-00-33)
Submitted: July 31, 2002
Decided: August 22, 2002
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Eric A. Bach, Charlotte, North Carolina, for Appellant. Brian Lee
Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GLASPY
OPINION
PER CURIAM:
Desi Arnez Glaspy appeals from his criminal conviction for bank
robbery, in violation of 18 U.S.C.A. § 2113 (West 2000), following
a guilty plea. On September 10, 2001, he was sentenced to 151
months imprisonment, 3 years supervised release, and ordered to pay
$2218 restitution.
Glaspy’s appointed counsel raises two issues on appeal pursuant to
Anders v. California, 386 U.S. 738 (1967): (1) whether Glaspy’s
guilty plea was invalid because he had not been indicted at the time
of his Rule 11 hearing and did not waive his right of indictment until
the sentencing hearing; and (2) whether the trial court erred in includ-
ing Glaspy’s previous convictions for breaking and entering a resi-
dence and attempted breaking and entering a residence as crimes of
violence for career offender purposes.
On appeal, Glaspy raises several issues pro se: (1) whether
Glaspy’s counsel was ineffective during the Rule 11 hearing by agree-
ing to waive the right to indictment; (2) whether Glaspy’s guilty plea
was voluntarily entered; (3) whether Glaspy’s guilty plea was invalid
because he had not been indicted at the time of his Rule 11 hearing
and did not waive his right of indictment until the sentencing hearing.
This court reviews Rule 11 plea hearings for plain error. United
States v. Martinez, 277 F.3d 517, 524, 527 (4th Cir. 2002). Having
reviewed the Rule 11 transcript, we find no basis for finding Glaspy’s
plea involuntary. Moreover, we reject the assertion that the plea was
invalid. Courts have recognized that a defendant may implicitly waive
the right to indictment by pleading guilty to an information. See
United States v. Gaudnet, 81 F.3d 585, 589 (5th Cir. 1996); Ornelas
v. United States, 840 F.2d 890, 892 (11th Cir. 1998); United States
v. Travis, 735 F.2d 1129, 1131-32 (9th Cir. 1984). Glaspy acknowl-
edged he was pleading guilty to an information at the Rule 11 hear-
ing. In any event, Glaspy explicitly waived prosecution by indictment
in open court prior to sentencing. See Fed. R. Crim. P. 7(b).
UNITED STATES v. GLASPY 3
Next, we reject Glaspy’s claims of ineffective assistance as the
record fails to conclusively demonstrate such ineffective assistance.
See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997), cert.
denied, 531 U.S. 1193 (2001). Finally, we find the court properly sen-
tenced Glaspy as a career offender because his prior housebreaking
convictions for breaking and entering qualified as crimes of violence
under United States Sentencing Guidelines Manual, § 4B2.2(a). See
United States v. Romary, 246 F.3d 339, 342 (4th Cir. 2001); United
States v. Raynor, 939 F.2d 191, 196 (4th Cir. 1991).
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Glaspy’s conviction 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 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