United States v. Anthony ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4582
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRELL L. ANTHONY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Matthew J. Perry, Jr., Senior
District Judge. (CR-02-554)
Submitted: August 25, 2005 Decided: August 30, 2005
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew R. Mackenzie, BARRETT & MACKENZIE, LLC, Greenville, South
Carolina, for Appellant. William Kenneth Witherspoon, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tyrell Anthony appeals his guilty plea conviction and
240-month sentence for possession with intent to distribute cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (2000) and
failure to appear, in violation of 18 U.S.C. § 3176(a)(1) (2000).
Anthony’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that he finds no
meritorious grounds for appeal, but asking this Court to review the
record for general ineffective assistance of counsel. The
Government declined to file an answering brief. Anthony filed a
pro se supplemental brief raising several additional issues.
Finding no reversible error, we affirm.
In his pro se supplemental brief, Anthony asserts that
the Government filed an untimely notice of intent to charge a prior
conviction pursuant to 21 U.S.C. § 851(b) (2000). After careful
review of the record we conclude that the Government filed its
initial notice well before Anthony’s guilty plea, in compliance
with the requirements of section 851(b). See 18 U.S.C. § 851(b)
(2000). Because any objection would have been meritless, we also
reject Anthony’s claim that his counsel rendered ineffective
assistance for failing to assert a meritless objection in the
district court. See Strickland v. Washington, 466 U.S. 678, 687-95
(1984).
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Anthony also asserts that the district court failed to
conduct the appropriate colloquy at sentencing as required by
§ 851. Because Anthony did not raise this claim in the district
court, it is reviewed for plain error. United States v. Olano, 507
U.S. 725, 731-32 (1993). To demonstrate plain error, a defendant
must establish that error occurred, that it was plain, and that it
affected his substantial rights. Id. If a defendant establishes
these requirements, the court’s “discretion is appropriately
exercised only when failure to do so would result in a miscarriage
of justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. Although we recognize
that the district court did not expressly ask Anthony if he wished
to challenge his prior convictions, we note that Anthony stipulated
to the priors under § 851 in his plea agreement. Moreover, Anthony
failed to object to the Presentence Report despite its reference to
his prior convictions. Finally, we note that despite being asked
several times, Anthony declined to address the district court. We,
therefore, conclude that any error did not affect Anthony’s
substantial rights. United States v. Ellis, 326 F.3d 593, 598-99
(4th Cir. 2003) (finding no plain error where the district court
did not strictly comply with § 851 because counsel failed to object
to the prior in the PSR and because the defendant declined to
address the court).
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In accordance with Anders, we have reviewed the entire
record in this case and have found no instances of ineffective
assistance, see Strickland, 466 U.S. at 687-95; United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (holding that claims
of ineffective assistance of counsel are generally not cognizable
on direct appeal unless the face of the record conclusively
establishes ineffective assistance), or other meritorious issues
for appeal. We, therefore, affirm Anthony’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 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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