United States v. Reid ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4513
WILLIAM HENRY REID, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-97-748)
Submitted: February 16, 1999
Decided: April 7, 1999
Before ERVIN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Benjamin Thomas Stepp, FEDERAL PUBLIC DEFENDER'S
OFFICE, Greenville, South Carolina, for Appellant. Harold Watson
Gowdy, III, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Henry Reid, Jr., appeals from his conviction and sentence
imposed after a jury trial of being a convicted felon in possession of
a firearm, in violation of 18 U.S.C.A. § 922(g)(1) (West 1994 &
Supp. 1998). Reid's counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising several issues but stating that
in his view, there are no meritorious grounds for appeal. Reid was
informed of his right to file a supplemental informal brief and has
done so. We affirm.
The Government's evidence at trial established that when Spartan-
burg County Deputy Sheriff Kevin Bobo went to Reid's residence to
arrest him on several outstanding traffic offense warrants, Bobo
observed in plain view what he had reason to believe were items
stolen from the home of an elderly woman whose house Reid had pre-
viously rented. Bobo obtained a search warrant and returned later that
same day with other officers to search for the stolen goods. In the pro-
cess of conducting the search, officers found two firearms in the
drawer of a dresser in Reid's bedroom.
At the close of the Government's case, Reid's counsel moved for
a judgment of acquittal under Fed. R. Crim. P. 29, which the district
court denied. Because the evidence was sufficient to support a convic-
tion under § 922(g)(1), the district court did not err in denying Reid's
Rule 29 motion. See 18 U.S.C.A. § 922(g)(1); Fed. R. Crim. P. 29;
United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United
States v. Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992).
The presentence investigation report (PSR) recommended that Reid
receive a four-level upward adjustment under U.S. Sentencing Guide-
lines Manual § 2K2.1(b)(5) (1997), for possession of a firearm in
connection with the felony offense of grand larceny. The district court
overruled Reid's objection, finding the adjustment warranted based
on the grand larceny as well as evidence that Reid possessed mari-
juana with intent to distribute. The evidence was sufficient to show
that the firearms were possessed in connection with the offense of
possession of marijuana with intent to distribute, thus warranting the
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adjustment on that basis. See USSG § 2K2.1(b)(5); Smith v. United
States, 508 U.S. 223, 238 (1993); United States v. Regans, 125 F.3d
685, 686-87 (8th Cir. 1997), cert. denied, ___ U.S. ___, 118 S. Ct.
1398 (1998); United States v. Nale, 101 F.3d 1000, 1003-04 (4th Cir.
1996). Accordingly, the district court did not clearly err in applying
the adjustment. See Nale, 101 F.3d at 1003.
The PSR also recommended a two-point upward adjustment in
Reid's offense level for obstruction of justice because Reid perjured
himself at trial. The district court did not clearly err in applying this
adjustment. See USSG § 3C1.1. Likewise, the district court did not err
in adding two points to Reid's criminal history category under USSG
§ 4A1.1(e).
The Government moved for an upward departure under USSG
§ 4A1.3(e), relying on Reid's numerous prior convictions and several
serious pending charges. The court departed upwards from a criminal
history category of IV to a category of V. The court did not abuse its
discretion in determining Reid's guideline range based on a criminal
history category of V. See USSG § 4A1.3(e), p.s.; United States v.
Rybicki, 96 F.3d 754, 756-57 (4th Cir. 1996). Finally, because the
record does not conclusively show that Reid received ineffective
assistance of counsel, we decline to address this issue. See United
States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
The remaining claims not raised by counsel but raised by Reid in
his informal brief lack merit. Bailey v. United States, 516 U.S. 137(1995), concerns the showing necessary to sustain a conviction under
the "use" prong of 18 U.S.C.A. § 924(c) (West 1994 & Supp. 1998),
and does not affect the result of this appeal. Likewise, the record
shows that police officers did not exceed the scope of the warrant in
searching Reid's home.
As required by Anders, we have examined the entire record and
find no meritorious issues for appeal. Because the record discloses no
reversible error, we affirm Reid's conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion 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
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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 conten-
tions are adequately set forth in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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