United States v. Butler ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE MARION BUTLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District
Judge. (CR-04-940)
Submitted: September 23, 2005 Decided: October 12, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Barlow Loggins, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Willie Marion Butler pled guilty to possession of a
firearm and ammunition by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2000), and was sentenced to forty-six months
in prison, followed by a three-year period of supervised release.
On appeal Butler’s counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting that the
district court may not have fully complied with Rule 11 of the
Federal Rules of Criminal Procedure in accepting Butler’s guilty
plea, but stating he found no meritorious claims for appeal.
Butler filed a pro se supplemental brief, alleging that his
sentence is unconstitutional in light of United States v. Booker,
125 S. Ct. 738 (2005), because the court increased his sentence
based on facts that were neither contained in the indictment nor
admitted by Butler. In accordance with Anders, we have considered
the briefs and examined the entire record for meritorious issues.
Finding no error, we affirm.
Butler did not seek to withdraw his guilty plea in the
district court. Accordingly, we review his challenge to the
propriety of the Rule 11 hearing for plain error. See United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that
“plain error analysis is the proper standard for review of
forfeited error in the Rule 11 context”). A plea is presumed to be
final and binding if the Rule 11 hearing is adequate. United
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States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). Our review
of the plea hearing transcript reveals that the district court
conducted a thorough Rule 11 colloquy that assured Butler’s plea
was made both knowingly and voluntarily. See United States v.
DeFusco, 949 F.2d 114, 117, 120 (4th Cir. 1991). Accordingly, we
find Butler’s guilty plea was knowing and voluntary and properly
accepted by the district court.
We find no Sixth Amendment error in Butler’s sentence.
Butler argues in his pro se supplemental brief that the district
court erred, in light of Booker, by enhancing his base offense
level pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(2)
(2004) upon its finding Butler’s offense was committed subsequent
to sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense. However, review of the
indictment and transcript of the plea hearing reveals that Butler
admitted to the facts that enhanced his base offense level.
Specifically, Butler admitted to the special findings in the
indictment that he “possessed the firearm and ammunition subsequent
to sustaining at least two felony convictions of either a crime of
violence or a controlled substance.” Therefore, the enhancement to
Butler’s base offense level and sentence was based on facts both
contained in the indictment and admitted by Butler, rather than
judicial factfinding.
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Finding no meritorious issues upon our review of the
record, we affirm Butler’s conviction 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 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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