United States v. Jordan ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT MICHAEL JORDAN, a/k/a Michael
Christopher Jordan, a/k/a Yophet Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-04-39)
Submitted: October 25, 2006 Decided: November 14, 2006
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Haakon Thorsen, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Charlotte, North Carolina,
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Michael Jordan pled guilty pursuant to a plea
agreement to conspiracy to possess with intent to distribute five
kilograms or more of cocaine and fifty grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841, 846 (2000). Pursuant to
the Government’s filing of a 21 U.S.C. § 851 (2000) information
listing a prior felony drug conviction, Jordan was sentenced to the
statutory mandatory minimum term of twenty years’ imprisonment.
See 21 U.S.C. § 841(b)(1)(A) (2000). Jordan timely appealed, and
we affirm.
Jordan’s appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending there are no
meritorious issues for appeal but suggesting the district court
erred at sentencing and Jordan received ineffective assistance of
counsel in regard to his guilty plea.1 Jordan filed a pro se
supplemental brief, alleging the district court’s imposition of
sentence violated United States v. Booker, 543 U.S. 220 (2005), and
its progeny. The Government elected not to file a responsive
brief.2
1
This claim is not cognizable on direct appeal, as the record
does not conclusively establish ineffective assistance. United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Instead, if
Jordan wishes to raise an ineffective assistance claim, he must do
so in a motion filed pursuant to 28 U.S.C. § 2255 (2000).
2
The plea agreement contained a provision in which Jordan
agreed to waive his right to contest his conviction and sentence,
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Counsel suggests the district court erroneously amended
the § 851 information, erroneously sentenced Jordan pursuant to
§ 841(b)(1)(A), and impermissibly enhanced Jordan’s sentence based
on a prior conviction not alleged in the indictment. Because these
contentions were not raised in the district court, they are
reviewed for plain error. See United States v. Olano, 507 U.S.
725, 733-37 (1993).
The record indicates the district court corrected a
clerical error in the § 851 information, which is permissible prior
to sentencing. See 21 U.S.C. § 851(a)(1) (2000). The district
court provided Jordan “with a full and fair opportunity to
establish that he is not the previously convicted individual or
that the conviction is an inappropriate basis for enhancement.”
United States v. Ellis, 326 F.3d 593, 599 (4th Cir. 2003) (quoting
United States v. Campbell, 980 F.2d 245, 252 (4th Cir. 1992)).
Jordan acknowledged the prior felony drug conviction. Clearly, he
cannot prove the “[clerical] error ‘actually affected the outcome
either on appeal or in a 28 U.S.C. § 2255 (2000) motion, except
for: (1) claims of ineffective assistance of counsel;
(2) prosecutorial misconduct; or (3) the sentence, but only to the
extent sentencing calculations were inconsistent with the plea
agreement’s stipulations. However, the Government has not asserted
the waiver provision precludes review of Jordan’s conviction or
sentence on appeal. Thus, we decline to enforce the appellate
waiver. See United States v. Blick, 408 F.3d 162, 168 (4th Cir.
2005) (stating that where Government expressly elects not to raise
waiver, this court may decline to consider it) (citing United
States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000)).
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of the proceedings.’” Ellis, 326 F.3d at 599 (quoting United
States v. Hastings, 134 F.3d 235, 240 (4th Cir. 1998)).
Counsel contends Jordan pled guilty to a violation of
§ 846 instead of a dismissed count alleging a violation of § 841,
to which he contends the § 851 information applied. However, § 846
adopts the penalty provisions of § 841. See 21 U.S.C. § 846 (“Any
person who attempts or conspires to commit any offense defined in
this subchapter shall be subject to the same penalties as those
prescribed for the offense.”).
Moreover, although the prior felony drug conviction was
not alleged in the indictment, the district court permissibly
enhanced Jordan’s sentence on the basis of this prior conviction.3
See United States v. Thompson, 421 F.3d 278, 284 n.4 (4th Cir.
2005) (concluding predicate convictions did not have to be charged
in the indictment or submitted to a jury so long as no facts
extraneous to those necessary to support the enhancement need be
decided to invoke the enhancement), cert. denied, 126 S. Ct. 1463(2006); see also Shepard v. United States, 544 U.S. 13, 25 (2005)
(holding Sixth Amendment protections apply only to disputed facts
about a prior conviction that are not evident from “the conclusive
significance of a prior judicial record.”).
3
In fact, Jordan acknowledged the existence of this prior
conviction at the sentencing hearing.
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In his pro se supplemental brief, Jordan alleges the
district court treated the sentencing guidelines as mandatory, in
violation of Booker and Hughes. The record plainly rebuts this
allegation. However, the district court possessed no discretion to
sentence Jordan below 240 months’ imprisonment, because “Booker did
nothing to alter the rule that judges cannot depart below a
statutorily provided minimum sentence.” United States v. Robinson,
404 F.3d 850, 862 (4th Cir.), cert. denied, 126 S. Ct. 288 (2005).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Jordan’s conviction and sentence.
This court requires that counsel inform Jordan, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jordan requests that a petition be filed, but
counsel believes that such a petition would be frivolous, counsel
may move in this court for leave to withdraw from further
representation. Any such motion filed by counsel must state that
a copy thereof was served on Jordan. 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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