United States v. Nathaniel L. Spivey ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4909
NATHANIEL L. SPIVEY,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-99-68)
Submitted: May 25, 2000
Decided: June 6, 2000
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. Miller Williams Shealy, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Charleston, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nathaniel Spivey appeals his conviction after a guilty plea to con-
spiracy to possess with intent to distribute cocaine, in violation of 21
U.S.C. §§ 841(a)(1), 846 (1994). Spivey's attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), raising
one issue but stating that, in his view, there are no meritorious issues
for appeal. Spivey was informed of his right to file a pro se supple-
mental brief but has failed to do so. Finding no reversible error, we
affirm.
Counsel questions whether the district court fully complied with
the mandates of Fed. R. Crim. P. 11. Following a de novo review of
the record, we find that the district court fully complied with Rule 11
in accepting Spivey's guilty plea. See United States v. Goins, 51 F.3d
400, 402 (4th Cir. 1995) (stating standard of review). To the extent
that the factual basis for the plea was not developed fully at the Rule
11 colloquy, we find that any error was harmless. See id.; Fed. R.
Crim. P. 11(h). The facts presented in the presentence report, to which
Spivey did not object, together with the facts proffered at the plea
hearing, establish that Spivey participated in a conspiracy to distribute
cocaine. See United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996)
(en banc) (discussing elements of offense); United States v. Adams,
961 F.2d 505, 512-13 (5th Cir. 1992) (considering evidence contained
in defendant's presentence report in determining whether Rule 11(f)
error was harmless); United States v. DeFusco , 949 F.2d 114, 120
(4th Cir. 1991) (stating that court may find factual basis from any-
thing appearing on the record and has wide discretion in determining
existence of factual basis).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Spivey'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 peti-
tion would be frivolous, then counsel may move in this court for leave
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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 presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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