United States v. Byers ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4426
ERIC MARIO BYERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca Beach Smith, District Judge.
(CR-02-77)
Submitted: May 7, 2004
Decided: June 3, 2004
Before MICHAEL and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marc Seguinot, LAW OFFICE OF MARC SEGUINOT, McLean,
Virginia, for Appellant. Paul Joseph McNulty, United States Attor-
ney, Alexandria, Virginia; James Ashford Metcalfe, Assistant United
States Attorney, Norfolk, Virginia, for Appellee.
2 UNITED STATES v. BYERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric Mario Byers appeals his convictions and sentence following
a jury trial for various drug crimes, in violation of 21 U.S.C. § 841(2000) and 21 U.S.C. § 846 (2000), as well as possession of an unreg-
istered machine gun, in violation of 26 U.S.C. § 5841 (2000), 26
U.S.C. § 5845 (2000), 26 U.S.C. § 5861 (2000), and 26 U.S.C. § 5871(2000). Byers’s attorney has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967). Although counsel states there are
no meritorious issues for appeal, he challenges the district court’s fail-
ure to dispose of various pretrial motions, as well as ineffective assis-
tance of trial counsel. The Government elected not to file a
responding brief, but Byers filed a pro se supplemental brief, in which
he elaborates on the arguments raised in counsel’s brief and raises
some additional arguments for the first time on appeal. In accordance
with Anders, we have considered the briefs and examined the entire
record for meritorious issues. Finding no error, we affirm.
Byers first argues the district court erred by failing to dispose of
various pretrial motions. Because Byers raises this argument for the
first time on appeal, our review is for plain error. United States v.
Olano, 507 U.S. 725, 731-32 (1993). Byers must show (1) that an
error occurred; (2) the error was plain; and (3) the error affected his
substantial rights. Id. at 732. Even when these conditions are satisfied,
we may exercise our discretion to notice the error only if the error
"seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." Id. (internal quotation marks omitted).
We find that, based on the Government’s responses to Byers’s
motions, including that it either had complied with its obligations or
intended to do so, coupled with the absence of any averment that the
Government failed to uphold its obligations, there were no contested
issues of law or material fact for the district court to resolve. Accord-
UNITED STATES v. BYERS 3
ingly, the district court did not plainly err by declining to dispose of
Byers’s pretrial motions.
Byers next argues his trial counsel rendered ineffective assistance
based on the following grounds: (1) violation of the Speedy Trial Act,
18 U.S.C. § 3161 (2000); (2) violation of the Double Jeopardy
Clause; and (3) denial of the right to compulsory process. Claims of
ineffective assistance generally are not cognizable on direct appeal,
but should be asserted on collateral review. Only if such ineffective
assistance is conclusively established on the face of the record should
such claims be entertained on direct appeal. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Because ineffective assistance is
not conclusively shown on the face of the record, Byers’s claim
should be asserted on collateral review.
Byers further argues the district court erred by using "double-
counting" in determining his offense level. Because this issue is raised
for the first time on appeal, our review is for plain error. See Olano,
507 U.S. at 731-32. It is well-settled that double counting is permissi-
ble under the federal sentencing guidelines except where it is
expressly prohibited. United States v. Crawford, 18 F.3d 1173, 1179
(4th Cir. 1994). Thus, the same conduct may be considered under
more than one guideline unless the guidelines specifically forbid it.
Id. The district court was allowed to consider Byers’s conduct under
each of the guidelines applied here. Thus, we find Byers fails to estab-
lish the district court committed plain error.
Byers next argues the district court erred by adding two points to
his criminal history score for a prior twelve-month sentence, all of
which but sixty days was suspended, for assault and battery imposed
by the Virginia Beach Circuit Court on June 14, 1999. Because Byers
raises this argument for the first time on appeal, our review is for
plain error. See Olano, 507 U.S. at 731-32. Pursuant to U.S. Sentenc-
ing Guidelines Manual § 4A1.1(b), "[a]dd 2 points for each prior sen-
tence of imprisonment of at least sixty days not counted in (a)."
Section (a) allows for the addition of three points for each prior sen-
tence of imprisonment exceeding one year and one month. Moreover,
USSG §4A1.2(e) provides that under circumstances as here, where
the prior sentence did not exceed one year and one month, the sen-
tence is counted as long as it was imposed "within ten years of the
4 UNITED STATES v. BYERS
defendant’s commencement of the instant offense." According to
Application Note 1 in the Commentary to USSG § 4A1.2:
"Prior sentence" means a sentence imposed prior to sentenc-
ing on the instant offense, other than a sentence for conduct
that is part of the instant offense. . . . A sentence imposed
after the defendant’s commencement of the instant offense,
but prior to sentencing on the instant offense, is a prior sen-
tence if it was for conduct other than conduct that was part
of the instant offense. . . .
According to the presentence report ("PSR"), Byers’s instant offense
commenced in April 1994. Although Byers’s sentence for the assault
and battery was imposed after the commencement of the instant
offense, it is nonetheless a "prior sentence" because it was for conduct
unrelated to the instant offense and was imposed prior to the May 13,
2003 sentencing for the instant offense. Moreover, this prior sixty-day
sentence was imposed within ten years of the commencement of the
instant offense. Thus, we conclude the district court did not plainly err
by adding two points for this prior sentence in determining Byers’s
criminal history category.
Finally, Byers argues the PSR was tainted due to a violation of his
right to counsel. Again, because Byers raises this argument for the
first time on appeal, our review is for plain error. Olano, 507 U.S. at
731-32. Byers contends he was interviewed by a federal probation
officer without his counsel present. He alleges when he inquired of
the whereabouts of counsel, he was informed counsel had contacted
the probation officer by fax stating to proceed without him. While the
Sixth Amendment right to counsel guarantees the assistance of coun-
sel to a defendant confronted by "prosecutorial forces," constitutional
protections need not be invoked in the absence of adversarial proceed-
ings. United States v. Johnson, 935 F.2d 47, 50 (4th Cir. 1991) (citing
Moran v. Burbine, 475 U.S. 412, 430 (1986)) (quoting Maine v.
Moulton, 474 U.S. 159, 170 (1985)). Throughout the process of inter-
viewing a defendant, preparing a presentence report, and discussing
the report during a presentence conference with the court, a probation
officer is a neutral, information-gathering agent of the court, not an
agent of the prosecution. Johnson at 49-50 (citing United States v.
Jackson, 886 F.2d 838, 844 (7th Cir. 1989)). Thus, because a proba-
UNITED STATES v. BYERS 5
tion officer is not an agent of the prosecution, we find Byers had no
Sixth Amendment right to counsel during the presentence interview.
Accordingly, we find Byers fails to show the district court committed
plain error in this respect.
In accordance with Anders, we have reviewed the entire record in
this case, including the sentencing transcripts, and have found no mer-
itorious issues for appeal. We therefore affirm Byers’s convictions
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 to withdraw from representation at that time.
Counsel’s motion must state that a copy thereof was served on Byers.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED