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 2008-01

United States v. Waycaster , 261 F. App'x 464 ( 2008 )


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  •                             UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4612
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRADLEY DALE WAYCASTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00031-LHT)
Submitted:   December 19, 2007            Decided:   January 9, 2008
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Ann Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy E.
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bradley    Dale    Waycaster    appeals      from      his    262-month
sentence   after   pleading    guilty     to   possession      with     intent   to
distribute methamphetamine and cocaine, in violation of
    21 U.S.C. § 841
    (a)(1) (2000).    Waycaster’s counsel filed a brief pursuant to
Anders v. California,
    386 U.S. 738
     (1967), stating that there are
no meritorious issues for appeal, but asking this court to review
whether the district court violated Waycaster’s Fifth and Sixth
Amendment rights by enhancing his sentence, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2006), based on
prior convictions that had not been found by a jury or admitted by
him.   Waycaster filed a pro se supplemental brief in which he
asserts that he should have received a downward departure pursuant
to USSG § 5K1.1.     Finding no error, we affirm.
Because   Waycaster    failed       to   object   to    the   district
court’s enhancement of his offense level, this court reviews the
claim for plain error.       Fed. R. Crim. P. 52(b); United States v.
Olano,
    507 U.S. 725
    , 731-32 (1993).            While Waycaster contends on
appeal that the district court erred by increasing his sentence
based on facts that were not submitted to a jury or admitted by
him, prior convictions do not need to be determined by a jury
beyond a reasonable doubt. See Almendarez-Torres v. United States,
    523 U.S. 224
    , 233-36, 243-44 (1998); see also United States v.
Cheek,
    415 F.3d 349
    , 351-54 (4th Cir.) (reaffirming continuing
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validity of Almendarez-Torres after United States v. Booker,
    543 U.S. 220
     (2005)), cert. denied,
    546 U.S. 1010
     (2005).                    The nature
and    occasion      of     prior    offenses       are   facts   inherent    in   the
convictions and the Government is not required to allege prior
convictions in the indictment or submit proof of them to a jury.
See United States v. Thompson,
    421 F.3d 278
    , 285-87 (4th Cir.
2005), cert. denied,
    547 U.S. 1005
     (2006); see also Shepard v.
United States,
    544 U.S. 13
    , 25 (2005).                    Therefore, the district
court   did    not    err    in     using    Waycaster’s    prior   convictions     in
determining his sentence on the present conviction.
In his pro se supplemental brief, Waycaster asserts that
he    provided    the     Government        with    information   and   should     have
received a downward departure pursuant to USSG § 5K1.1.                      However,
the filing of a motion for downward departure was within the
Government’s sole discretion, as the Government was not required to
move for a reduction under the terms of the plea agreement.                    Nor is
there any evidence in the record that the refusal was based on an
unconstitutional motive.             See Wade v. United States,
    504 U.S. 181
    ,
185-86 (1992).        Accordingly, Waycaster’s claim is meritless.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.                          We
therefore affirm Waycaster’s sentence. This court requires counsel
inform his client, in writing, of his right to petition the Supreme
Court of the United States for further review.                       If the client
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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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