United States v. Justice

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4666
STACY COLE JUSTICE, a/k/a Stacey
Cole Justice,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William B. Traxler, Jr., District Judge.
(CR-96-1020-WBT)
Submitted: September 15, 1998
Decided: October 8, 1998
Before HAMILTON and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. E. Jean Howard, OFFICE OF THE
UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Stacy Cole Justice pleaded guilty to possession of a firearm by a
convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), and
received a 51-month sentence. Justice noted a timely appeal. Counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious issues for appeal but chal-
lenging Justice's Fed. R. Crim. P. 11 proceeding and the four-level
enhancement of Justice's offense level under U.S. Sentencing Guide-
lines Manual § 2K2.1(b)(5) (1995). Justice has filed a supplemental
brief claiming that the indictment was deficient. Finding no error, we
affirm.
A caller informed Westminster, South Carolina, police that a man
at a residence had a gun and was threatening to kill a number of peo-
ple. Two officers responded to the call. They found Justice holding
a handgun and struggling with Boyd Abercrombie. Justice pointed the
gun at one of the police officers. Finally, another victim, Tim Comp-
ton, disarmed Justice, who was arrested. Justice had a previous con-
viction for manslaughter. The firearm was not manufactured in South
Carolina.
Counsel first asserts that the district court did not comply with Fed.
R. Crim. P. 11 but offers no specific examples of noncompliance. Our
review of the plea colloquy reveals that the court ascertained that Jus-
tice was competent to enter a plea and that he was satisfied with his
attorney's performance. Justice stated that there was a factual basis
for his plea. The district court fully explained--and Justice acknowl-
edged that he understood--the rights that he was waiving and the
penalties that he faced. The court concluded that Justice knowingly
and voluntarily entered his guilty plea. The record discloses full com-
pliance with Rule 11.
2
Counsel also contends that Justice should not have received a four-
level enhancement under USSG § 2K2.1(b)(5) for using or possessing
a firearm in connection with another felony offense. Justice entered
an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970), to
state felony charges lodged against him in connection with the events
giving rise to his federal conviction. At sentencing, Officer Barber
testified that Justice pointed the gun in a threatening manner at Aber-
crombie. Justice then pointed the gun towards Officer Barber. Justice
denied threatening anyone with the gun although he admitted possess-
ing it. The district court credited Officer Barber's testimony over that
of Justice. In light of Officer Barber's testimony, the district court's
credibility determination was not clearly erroneous, and the enhance-
ment was proper.
In his pro se supplemental brief, Justice contends that the indict-
ment was flawed because it did not allege a sufficient nexus between
the firearm and interstate commerce. He appears to believe that the
district court was without jurisdiction because of this alleged defi-
ciency. We note initially that Justice's guilty plea waives all prior
nonjurisdictional defects. See Tollett v. Henderson, 411 U.S. 258, 267
(1973). In any event, the indictment sufficiently apprised Justice of
the essential elements of the charge against him. Notably, the indict-
ment charged that Justice, a convicted felon, had possessed a firearm
that "had been shipped and transported in interstate commerce."
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
The 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 representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We affirm the conviction and sentence. We dispense with oral
argument because the facts and legal contentions are fully presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
3