United States v. Billings ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4598
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY BILLINGS, a/k/a Tony,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-27)
Submitted: May 18, 2006 Decided: May 25, 2006
Before WIDENER, WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Billings pled guilty to distributing crack
cocaine within 1000 feet of a playground, in violation 21 U.S.C.
§ 841(a)(1) (2000), and was sentenced after the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005), to 360
months imprisonment. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), asserting that there are
no meritorious grounds for appeal, but raising the issues of
whether the district court plainly erred in denying as moot
Billings’ motion to withdraw his guilty plea and whether the court
plainly erred in determining Billings’ relevant conduct. Billings
has also filed a pro se supplemental brief challenging the district
court’s determination of his relevant conduct.
We find that Billings’ guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Fed. R.
Crim. P. 11. The record discloses that Billings was properly
advised of his rights, the offense charged, the maximum sentence
for the offense, and the mandatory minimum sentences applicable.
The court also determined that there was an independent factual
basis for the plea and that the plea was not coerced or influenced
by any promises. See North Carolina v. Alford, 400 U.S. 25, 31
(1970); United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir.
1991). Although Billings initially moved to withdraw his guilty
plea, he later withdrew the motion after informing the court that
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he merely wished to withdraw his stipulation as to drug quantity,
and was allowed to do so. Accordingly, we find no plain error in
the district court’s acceptance of Billings’ guilty plea.
At sentencing, the district court concluded that Billings
was responsible for a total of 239.7 grams of crack cocaine, based
on the testimony of several witnesses. This resulted in a base
offense level of 38 under U.S. Sentencing Guidelines Manual § 2D1.1
(2004). The court also increased Billings’ offense level by two
levels for possession of a firearm, USSG § 2D1.1(b)(1), and by one
level because the offense occurred near a protected location, USSG
§ 2D1.2(a)(2).
This court reviews the district court’s factual findings
in support of sentencing enhancements for clear error. See United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002); United
States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Further,
this court gives due regard to the district court’s opportunity to
judge the credibility of witnesses and does not ordinarily review
credibility determinations. United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989). Applying this standard, we find the
district court did not err in determining the drug quantity
attributable to Billings for sentencing purposes. Further, because
the court recognized the guidelines to be advisory, it properly
made findings at sentencing by a preponderance of the evidence.
See United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.
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2005)(Booker’s remedy demonstrates that judicial fact finding by a
preponderance of the evidence is unconstitutional only when it
results in a mandatory increase in the defendant’s sentence);
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005) (same).
Billings’ sentence was both within the guideline range of
360 to 480 months, and within the statutory maximum of forty years
imprisonment. See 21 U.S.C. § 841(b)(1)(C) (2000). Because the
district court appropriately treated the guidelines as advisory,
and properly calculated and considered the guideline range and the
relevant § 3553(a) factors, we find the sentence reasonable. See
United States v. Green, 436 F.3d 449, 2006 WL 267217, at *5 (4th
Cir. Feb. 6, 2006) (No. 05-4270).
In accordance with Anders we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Counsel has moved to withdraw from further representation.
We deny the motion at this juncture. 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, counsel may move this court for
leave to withdraw from representation at that time. 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
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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