United States v. Sanders , 197 F. App'x 240 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4226
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN RAYVON SANDERS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-261)
Submitted: August 9, 2006 Decided: August 31, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Clark Fischer, RANDOLPH & FISCHER, Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Randall Stuart Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Warren Rayvon Sanders pled guilty to distribution of 126
grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000). The district court sentenced him as a career offender to
a 262-month term of imprisonment. Sanders’ counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
challenging Sanders’ sentence but stating that, in his view, there
are no meritorious issues for appeal. Sanders has filed pro se
supplemental briefs. We affirm.
Counsel questions whether the district court erred in
classifying Sanders as a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1 (2004), because the predicate convictions
were not charged in the indictment or proved beyond a reasonable
doubt. This argument is foreclosed by our decision in United
States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005) (holding
that application of career offender enhancement falls within
exception for prior convictions where facts were undisputed, making
it unnecessary to engage in further fact finding about prior
conviction).
In his pro se supplemental briefs, Sanders asserts that
two of the convictions used to designate him as a career offender
were part of the same course of conduct and, therefore, should not
have been counted as separate convictions. Because Sanders raises
this issue for the first time on appeal, we review his claim for
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plain error. See United States v. Hughes, 401 F.3d 540, 547-48
(4th Cir. 2005) (discussing standard of review). Our review of the
record convinces us that the district court properly counted
Sanders’ predicate convictions as separate offenses. See USSG
§ 4A1.2(b); United States v. Green, 436 F.3d 449, 459 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006); United States v.
Breckenridge, 93 F.3d 132, 137 (4th Cir. 1996). Thus, we find no
error in the district court’s classification of Sanders as a career
offender.*
Counsel also suggests that Sanders’ 262-month sentence is
unreasonable. 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. However, in imposing a sentence post-
Booker, courts still must calculate the applicable guideline range
after making the 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).
*
In his pro se supplemental briefs, Sanders contends that the
district court should not have used relevant conduct from the
dismissed count or the 100:1 crack to powder cocaine ratio in
establishing his base offense level and that the court erred in
determining his criminal history category. We decline to review
these claims in light of our conclusion that the district court
properly sentenced Sanders as a career offender. We also have
carefully considered Sanders’ claims that he did not receive notice
of the Government’s intention to seek enhanced statutory penalties
under 21 U.S.C. § 851 (2000), and that he was improperly sentenced
under a mandatory sentencing guidelines scheme and find these
claims to be without merit.
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United States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing
Hughes, 401 F.3d at 546), cert. denied, 126 S. Ct. 2054 (2006). As
stated in Hughes, this court will affirm a post-Booker sentence if
it is both reasonable and within the statutorily prescribed range.
Hughes, 401 F.3d at 546-47 (citations omitted). “[A] sentence
within the proper advisory Guidelines range is presumptively
reasonable.” United States v. Johnson, 445 F.3d 339, 341 (4th Cir.
2006).
Here, the district court sentenced Sanders post-Booker,
appropriately treated the guidelines as advisory, and considered
the § 3553(a) factors. Because Sanders’ 262-month sentence falls
within a properly calculated guideline range, the sentence is well
within the statutory maximum of life imprisonment, see 21 U.S.C.A.
§ 841(b)(1)(A) (West 1999 & Supp. 2006), and neither Sanders nor
the record suggests any information to rebut the presumption of
reasonableness, we find that the sentence is reasonable.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm Sanders’ 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
counsel may move in this court for leave to withdraw from
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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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