United States v. Chavis ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4038
SAMMY CHAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-95-33)
Submitted: March 27, 1997
Decided: April 9, 1997
Before RUSSELL, LUTTIG, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Marcia G. Shein, Richard D. Biggs, LAW OFFICES OF MARCIA G.
SHEIN, P.C., Atlanta, Georgia, for Appellant. J. Preston Strom, Jr.,
United States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Kristina L. Ament, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Sammy Chavis pled guilty to conspiring to distribute and possess
with intent to distribute cocaine between 1988 and 1995 in violation
of 21 U.S.C. § 846 (1994). He was sentenced as a career offender to
a term of 262 months imprisonment. Chavis appeals his sentence,
arguing that the district court plainly erred in sentencing him as a
career offender, USSG § 4B1.1,1 and that he received ineffective
assistance at sentencing. He also seeks leave to file a pro se supple-
mental brief in which he argues that there was an insufficient factual
basis for his guilty plea, the court failed to explain the charge, and the
indictment was defective. We grant leave to file the supplemental
brief, but affirm the conviction and sentence.
Before Chavis was indicted in 1995, a federal agent interviewed a
number of individuals who stated that they bought cocaine from
Chavis during several years preceding his arrest. In addition, Carlos
Perez told the agent that he began delivering cocaine to Chavis in
1988 and dealt with him on and off until his arrest in December 1994.
After Chavis pled guilty, the probation officer recommended a career
offender sentence because Chavis was convicted of state felony drug
trafficking offenses in 1986 and 1991.2 Chavis' attorney filed a writ-
ten objection to this recommendation but withdrew it at the sentenc-
ing hearing.
Chavis contends that his 1991 cocaine trafficking conviction was
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2 Under USSG § 4B1.1, a defendant is a career offender if he is at least
eighteen years old, the instant offense is a crime of violence or a con-
trolled substance offense, and he has at least two prior felony convictions
for either a crime of violence or a controlled substance offense.
2
part of the instant offense and, therefore, was incorrectly included in
his criminal history and improperly considered in the career offender
determination. See USSG §§ 4A1.2(a)(1), 4B1.2(3) (two predicate
felony convictions must be counted separately for criminal history
purposes). To succeed on a claim of plain error, Chavis must show
that (1) an obvious error occurred, (2) the error affected his substan-
tial rights, and (3) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732-37 (1993). Chavis has failed to convince us that a plain
error occurred because he relies entirely on the fact that his 1991
cocaine trafficking conviction was within the time frame of the con-
viction charged in the instant offense. While the 1991 offense may
have been part of the instant offense, Chavis made no showing in the
district court to establish that it was, and has made none on appeal.
Consequently, we find that the district court did not plainly err in
determining that Chavis was a career offender.
Because the record does not conclusively demonstrate that defense
counsel rendered ineffective assistance during the sentencing pro-
ceeding, we will not address that issue on direct appeal. See United
States v. Williams, 977 F.2d 866, 871 (4th Cir. 1992).
The indictment bore the typed name of the United States Attorney
and the initials of the Assistant United States Attorney. The grand
jury foreman's name was stamped on it. While Federal Criminal
Rules 6(c) and 7(c) call for the indictment to be signed by these per-
sons, any error was nonjurisdictional and was waived when Chavis
pled guilty. See Frisbie v. United States, 157 U.S. 160, 163-65 (1895)
(failure of grand jury foreman to sign indictment is non-fatal irregu-
larity); United States v. Easton, 937 F.2d 160, 162 (5th Cir. 1991)
(requirement that government attorney sign is nonjurisdictional).
Moreover, we find that Chavis had adequate notice of the crime with
which he was charged from the indictment and the magistrate judge's
explanation of the elements of the offense, and that the factual basis
for Chavis' guilty plea established the existence of a conspiracy.
We therefore affirm the conviction and the sentence. We grant
Chavis' request to file a pro se supplemental brief. We dispense with
oral argument because the facts and legal contentions are adequately
3
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
4