United States v. Franklin , 288 F. App'x 92 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4990
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEMAR CORNELIUS FRANKLIN, a/k/a Haitian Black,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-00207-TLW)
Submitted: June 16, 2008 Decided: August 15, 2008
Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mario A. Pacella, STROM LAW FIRM, L.L.C., Columbia, South Carolina,
for Appellant. Reginald I. Lloyd, Assistant United States
Attorney, Columbia, South Carolina; Arthur Bradley Parham,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lemar Cornelius Franklin pled guilty pursuant to a plea
agreement to one count of conspiracy to distribute and possess with
intent to distribute fifty grams or more of cocaine base and 500
grams or more of cocaine in violation of 21 U.S.C. § 846 (2000).
He was sentenced to 360 months’ imprisonment or the low end of the
advisory Sentencing Guidelines’ range of imprisonment. On appeal,
Franklin’s attorney filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating there are no meritorious issues for
appeal, but raising for the court’s consideration whether the
district court plainly erred by enhancing Franklin’s offense level
based on possession of a firearm. Franklin was informed of the
opportunity to file a pro se supplemental brief, but did not do so.
The Government did not file a brief. We affirm.
Because Franklin did not object to the firearm
enhancement, review is for plain error. To establish plain error
under United States v. Olano, 507 U.S. 725, 732-37 (1993), a
defendant must show that (1) error occurred; (2) the error was
plain; and (3) the error affected his substantial rights. Even
when these conditions are satisfied, we will exercise our
discretion to notice the error only if the error “seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 732 (internal quotation and citation
omitted).
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The district court determines issues related to
sentencing by a preponderance of the evidence standard. United
States v. Engleman, 916 F.2d 182, 184 (4th Cir. 1990). Based on
the facts in the presentence investigation report, we find there
was no plain error. In any event, Franklin’s offense level was
determined by his career offender status. Thus, even if there was
error with respect to the firearm enhancement, Franklin was not
prejudiced.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Franklin’s conviction and sentence. This court
requires that counsel inform his client, in writing, of the right
to petition the Supreme Court of the United States for further
review. If he requests a petition be filed, but counsel believes
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 Franklin.
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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