United States v. Mungo , 258 F. App'x 590 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4588
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTHUR JAMES MUNGO, JR., a/k/a Famous, a/k/a
JJ,
Defendant - Appellant.
No. 06-4589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN ALLEN BYRD,
Defendant - Appellant.
No. 06-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT GENARD BYRD, a/k/a Stank,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:05-cr-01042-TLW)
Submitted: November 28, 2007 Decided: December 17, 2007
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Clifford L. Welsh, WELSH & HUGHES, North Myrtle Beach, South
Carolina; John M. Ervin, III, ERVIN LAW FIRM, PA, Darlington, South
Carolina; Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence,
South Carolina, for Appellants. Rose Mary Parham, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to written plea agreements, Arthur James Mungo,
Jr., Steven Allen Byrd, and Robert Genard Byrd pled guilty to
conspiracy to possess with intent to distribute 50 grams or more of
cocaine base and 500 grams or more of cocaine, in violation of 21
U.S.C. §§ 841(b)(1)(A) and 846 (2000). Mungo and Robert Byrd also
pled guilty to possession of a firearm during and in relation to a
drug trafficking crime, in violation of 18 U.S.C. § 924(c) (2000).
Mungo was sentenced to 210 months’ imprisonment, Steven Byrd was
sentenced to 120 months’ imprisonment, and Robert Byrd was
sentenced to 300 months’ imprisonment. Finding no error, we
affirm.
On appeal, counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but contending (1) the district
court wrongly classified Mungo as a career criminal; (2) the
district court failed to comply with the requirements of Federal
Rule of Criminal Procedure 11 in accepting Steven and Robert Byrd’s
guilty pleas; (3) the district court did not properly calculate
Robert Byrd’s advisory guideline range; and (4) the district
court’s sentence for Robert Byrd was unreasonable. The Defendants
were advised of their right to file a pro se supplemental brief,
but did not do so, and the Government elected not to file a
responsive brief.
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Mungo questions whether he was properly classified as a
career offender because the drug conspiracy began prior to when he
committed the acts underlying his prior convictions. Section 4B1.1
of the United States Sentencing Guidelines provides that a
defendant should be classified as a career offender when (1) the
defendant is over eighteen, (2) the instant crime is a felony that
is a crime of violence or a controlled substance offense, and
(3) the defendant has at least two prior felony convictions for
either a crime of violence or a controlled substance offense.
Mungo only challenges whether his other felony
convictions were “prior” to his conviction for the drug conspiracy.
The drug conspiracy began in January 1997 and continued through
September 2005. To establish that Mungo was a career offender, the
district court relied on felony convictions Mungo sustained in 1998
and 2002. In so doing, the district court properly determined that
because the conspiracy continued after Mungo was convicted for the
other offenses, those convictions can properly be considered “prior
felony convictions” for purposes of categorizing him as a career
offender. See United States v. Elwell, 984 F.2d 1289, 1298 (1st
Cir. 1993).
Steven and Robert Byrd question whether the district
court complied with Fed. R. Crim. P. 11 in conducting their guilty
plea hearings. Reviewing their records for plain error, we
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conclude the district court conducted a thorough inquiry pursuant
to Rule 11. Accordingly, we find no error.
Lastly, Robert Byrd contends that his sentence is
unreasonable, but he offers no basis for this contention. The
record shows the district court appropriately calculated the
advisory guideline range and considered it in conjunction with
other relevant factors under the Guidelines and 18 U.S.C. § 3553(a)
(2000). See United States v. Moreland, 437 F.3d 424, 432-33 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). Robert Byrd’s
sentence, which is well within the applicable Guidelines range and
the statutory maximum, is therefore reasonable. See United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006); see also Rita v. United States, 127 S. Ct. 2456,
2462-65 (2007).
Pursuant to Anders, we have examined Defendants’
respective records and find no meritorious issues for appeal. We
therefore affirm the district court’s judgment. We also deny
Robert Byrd’s motion to deconsolidate his case from Steven Byrd’s
and Mungo’s appeals. This court requires that counsel inform their
respective clients, in writing, of their right to petition the
Supreme Court of the United States for further review. If any
Defendant requests that such 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.
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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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