United States v. Sinclair ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4556
DEVINE WHITFIELD, a/k/a Shawn
Sinclair,*
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-97-804)
Submitted: January 19, 1999
Decided: February 22, 1999
Before HAMILTON and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. Sean Kittrell, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, South Carolina, for Appellee.
_________________________________________________________________
*In the district court, this case was styled "United States v. Shawn Sin-
clair."
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Shawn Sinclair* pled guilty to possession of crack cocaine with the
intent to distribute, in violation of 21 U.S.C.A.§ 841(a)(1) (West
1981 & Supp. 1998), and the use or carrying of a firearm during a
drug trafficking offense, in violation of 18 U.S.C.A. § 924(c)(1)
(West Supp. 1998). The district court imposed a 300-month sentence.
Whitfield's attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Counsel states that there are no mer-
itorious grounds for appeal, but raises the following issues: whether
the district court erred in finding Whitfield responsible for 193.16
grams of crack cocaine and whether the district court erred in finding
that Whitfield obstructed justice when he failed to inform the magis-
trate judge of his correct name. Although informed of his right to file
a supplemental brief, Whitfield has not done so. Because our review
of the record reveals no reversible error, we affirm.
After the jury was empaneled and on the day of trial, Whitfield
pled guilty. The district judge accepted Whitfield's guilty plea follow-
ing a proper Rule 11 colloquy. In her presentence report, the U.S. Pro-
bation Officer found that Whitfield was responsible for the
distribution of 193.16 grams of crack cocaine. The base offense level
for distributing 150-500 grams of crack cocaine is 34. U.S. Sentencing
Commission Guidelines Manual § 2D1.1 (1997). The Probation Offi-
cer recommended a two level increase for obstruction of justice pur-
suant to USSG § 3C1.1 because Whitfield provided a false name to
the magistrate judge and thereby avoided being charged as a felon in
possession of a firearm. Because Whitfield pled guilty to his offense,
_________________________________________________________________
*Appellant provided this false name to the magistrate judge. His legal
name, Devine Whitfield, was not discovered by his attorney until just
over three weeks before trial. Counsel informed the district judge of the
deception.
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albeit on the eve of trial, the Probation Officer recommended a two-
level decrease for acceptance of responsibility.
Thus, the recommended offense level was 34, which, combined
with Whitfield's criminal offense category of III, yielded a guideline
range of 188 to 235 months. But because of a prior felony drug
offense, Whitfield was subject to a 20-year mandatory minimum sen-
tence on count 1. The district court adopted the Probation Officer's
recommendations, sentencing Whitfield to the statutory minimum of
240 months on count 1. 21 U.S.C.A. § 841(b)(1)(A). A 60-month
consecutive sentence was imposed in connection with the firearm
charge. See USSG § 2K2.4.
The court's determination of the drug quantity chargeable to Whit-
field was based upon the testimony of one of Whitfield's accom-
plices, Joseph White, and Task Force Officer Galloway. White
testified to Whitfield's crack distribution relating facts that would
support a finding of Whitfield's distribution of well over 193.16
grams of crack cocaine. Galloway testified about the statement given
by another accomplice of Whitfield's, Connie Green, who informed
him of drug sales Whitfield made to her and Whitfield's drug dealing
activities. Galloway also provided information gathered from several
other witnesses in the investigation of a larger drug conspiracy of
which Whitfield was involved as a buyer. The information gleaned
from these witnesses' statements to Galloway tended to support
White's testimony.
The district judge, crediting the testimony of White and Galloway,
adopted the Probation Officer's recommendation that Whitfield be
held responsible for 193.16 grams. We give due deference to the dis-
trict judge's opportunity to judge the credibility of witnesses, and will
only reverse the court's factual findings if they are clearly erroneous.
See United States v. Brooks, 957 F.2d 1138, 1148, 1152 (4th Cir.
1992). The district court's finding was not clearly erroneous.
The district court also did not err in increasing Whitfield's offense
level for obstructing the administration of justice. Providing materi-
ally false information to a judge or magistrate is a basis for imposing
a two-level increase in the offense level. See USSG § 3C1.1, com-
ment. n.3(f)); see also United States v. Romulus , 949 F.2d 713, 717
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(4th Cir. 1991). Also, even assuming the court erred, such an error
would be harmless because Whitfield received the statutory manda-
tory minimum sentence of 240 months on count 1 and the statutorily-
mandated sentence of 60 months on count 2.
We thus find that the district court did not err in assessing the
quantity of drugs chargeable to Whitfield or in increasing his offense
level for obstruction of justice. We have examined the entire record
in this case in accordance with the requirements of Anders, 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 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
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