United States v. Jordan , 211 F. App'x 207 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4397
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES CLEVELAND JORDAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (1:05-cr-00358-JAB-2)
Submitted: November 30, 2006 Decided: December 28, 2006
Before WILLIAMS, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christopher A. Beechler, LAW OFFICES OF CHRISTOPHER A. BEECHLER,
P.C., Winston-Salem, North Carolina, for Appellant. Sandra Jane
Hairston, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Cleveland Jordan appeals the 168-month sentence
imposed by the district court after he pled guilty to distribution
of 37.3 grams of cocaine hydrochloride, in violation of 21 U.S.C.
§ 841(a)(1) (2000). Jordan’s counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), challenging Jordan’s
sentence but stating that, in his view, there are no meritorious
issues for appeal. Jordan has filed a pro se supplemental brief
raising several issues. We affirm.
Counsel questions whether Jordan’s sentence is too severe
but, citing United States v. Porter, 909 F.2d 789 (4th Cir. 1990),
asserts that this court does not have jurisdiction to review
sentences within a properly calculated sentencing guidelines range.
This court rejected that argument in United States v.
Montes-Pineda, 445 F.3d 375, 377-78 (4th Cir. 2006) (holding that
appellate courts have jurisdiction under 18 U.S.C.A. § 3742 (West
2000 & Supp. 2006), to review for reasonableness a sentence within
advisory guideline range), petition for cert. filed, __ U.S.L.W. __
(U.S. July 21, 2006) (No. 06-5439).
In imposing a sentence after United States v. Booker, 543
U.S. 220 (2005), a district court is no longer bound by the range
prescribed by the sentencing guidelines. United States v. Hughes,
401 F.3d 540, 546 (4th Cir. 2005). However, a court still must
calculate the applicable guideline range after making the
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appropriate findings of fact and consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006). United States v. Moreland, 437
F.3d 424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).
This court will affirm a post-Booker sentence if it “is within the
statutorily prescribed range and is reasonable.” Id. at 433(internal quotation marks and citation omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006).
In his pro se supplemental brief, Jordan challenges the
district court’s classification of him as a career offender.
Jordan did not object to this classification in the district court.
Thus, our review of this issue is for plain error. See Hughes, 401
F.3d at 547-48, 555 (discussing plain error standard of review).
Jordan asserts that his prior North Carolina felony
conviction for breaking and entering did not qualify as a crime of
violence. However, the record belies Jordan’s claim. See U.S.
Sentencing Guidelines Manual § 4B1.2 (2005) (defining “crime of
violence”); United States v. Thompson, 421 F.3d 278, 284 (4th Cir.
2005) (noting that North Carolina conviction for breaking and
entering qualified as predicate violent felony offense for purposes
of Armed Career Criminal Act), cert. denied, 126 S. Ct. 1463(2006).
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Jordan also asserts that the district court erroneously
counted his state conviction for assault inflicting serious bodily
injury as a predicate offense for career offender purposes given
that he committed that offense on September 2, 2005, which was
after he distributed cocaine on July 21, 2005, the conduct that
formed the basis of the instant offense. We agree. See USSG
§ 4B1.2(c); United States v. Williams, 29 F.3d 172, 174 (4th Cir.
1994) (holding that “convictions sustained subsequent to the
conduct forming the basis for the offense at issue cannot be used
to enhance a defendant’s status to career offender”). Although the
assault conviction did not qualify as a predicate offense, the
district court nevertheless properly classified Jordan as a career
offender. Jordan’s criminal history also included a North Carolina
felony conviction for possession of cocaine, which qualified as a
controlled substance offense. We therefore find that the district
court properly designated Jordan as a career offender and
established an advisory sentencing guideline range of 151 to 188
months of imprisonment.
The district court sentenced Jordan as a career offender
only after considering and examining the sentencing guidelines and
the § 3553(a) factors, as instructed by Booker. In addition,
Jordan’s 168-month sentence is well within the twenty-year
statutory maximum sentence. See 21 U.S.C.A. § 841(b)(1)(C) (West
Supp. 2006). Finally, neither Jordan nor the record suggests any
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information so compelling as to rebut the presumption that a
sentence within the properly calculated guideline range is
reasonable. We therefore conclude that the sentence is reasonable.
See United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006)
(“[A] sentence within the proper advisory Guidelines range is
presumptively reasonable.”).
Jordan’s remaining claims in his pro se supplemental
brief need not detain us long. Although Jordan asserts that he
should have been appointed an attorney when the Government lodged
a detainer against him with state authorities, the right to counsel
had not attached at the time the detainer was filed. See Kirby v.
Illinois, 406 U.S. 682, 689 (1972); United States v. Alvarado, 440
F.3d 191, 194 (4th Cir.), cert. denied, 127 S. Ct. 81 (2006).
Finally, with regard to Jordan’s claim that counsel provided
ineffective assistance, we decline to review this claim on direct
appeal. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir.) (providing standard), cert. denied, 126 S. Ct. 1407 (2006).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Jordan’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
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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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