United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4463
FREDERICK FINLEY DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-95-187)
Submitted: February 27, 1997
Decided: March 13, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jacqueline Ann Hallinan, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Michael L. Keller, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Frederick Finley Davis pled guilty to distribution of cocaine base,
in violation of 21 U.S.C. § 841(a)(1) (1994). The district court sen-
tenced Davis to serve 135 months imprisonment to be followed by
three years supervised release. He appeals his conviction and sen-
tence. Davis's counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising three issues, but stating that,
in her view, there are no meritorious issues for appeal. Davis's coun-
sel provided him with a copy of the Anders brief and informed him
of his right to file a pro se supplemental brief; he failed to do so.
Davis's counsel presented the following issues for review: whether
the district court erred in using a statement Davis made to a police
officer, allegedly without the benefits of a Miranda warning;*
whether such statement provided a reasonable indicia of reliability to
support the district court's findings of relevant conduct; and, whether
the district court properly calculated the amount of cocaine base
attributable to Davis for sentencing purposes. Finding no reversible
error, we affirm Davis's conviction and sentence.
As a result of Davis's guilty plea, he has waived review of all ante-
cedent, non-jurisdictional errors. See Tollett v. Henderson, 411 U.S.
258, 267 (1973); Hall v. McKenzie, 575 F.2d 481, 484 (4th Cir.
1978). Therefore, Davis's claim that his non-Miranda statement was
used against him is not reviewable on appeal.
Davis's remaining claims challenge aspects of the sentencing pro-
ceedings; however, because Davis did not object during the sentenc-
ing hearing, we review these issues for plain error only. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732 (1993). An
appeals court will not notice an error raised for the first time on
appeal unless (1) there is an error, (2) which is plain, (3) which affects
the substantial rights of the defendant, and (4) which must be cor-
rected to avoid a miscarriage of justice or damage to the "fairness,
_________________________________________________________________
*Miranda v. Arizona, 384 U.S. 436 (1978).
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integrity or public reputation of judicial proceedings." Olano, 507
U.S. at 736-37; see United States v. Cedelle, 89 F.3d 181, 184 (4th
Cir. 1996).
On two separate occasions, Davis was monitored selling cocaine
base during controlled buys with Government operatives. After his
arrest, he admitted to a police officer that he had been selling approxi-
mately $1000 worth of cocaine base per week since being released
from prison to begin serving a supervised release term for a prior
offense. The Government calculated this time span as thirty weeks.
To ascertain the relevant conduct for sentencing purposes, the Gov-
ernment took the lowest per-gram price of cocaine base that Davis
sold to the Government operatives and divided that price into Davis's
admitted drug income of $1000 a week for thirty weeks. The district
court accepted this extrapolation and the Government's final calcu-
lated range of 50 to 150 grams of cocaine base as relevant conduct,
and sentenced Davis accordingly.
When no drugs are seized during an arrest, or when the amount
seized does not reflect the scale of the offense, a sentencing court may
consider the sums of money involved in the offense to reach an
approximation of the quantity of drugs for which the defendant should
be held liable. See United States v. Hicks, 948 F.2d 877, 882 (4th Cir.
1991). We therefore find that the district court did not plainly err in
its calculation of the amount of cocaine base attributable to Davis for
sentencing purposes. For the foregoing reasons, we affirm Davis's
conviction and sentence.
In accordance with the requirements of Anders , we have examined
the entire record in this case and find no potentially meritorious issues
for appeal. This court requires that counsel inform his client, in writ-
ing, 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 coun-
sel 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 dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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