United States v. Barber

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN RAYMOND BARBER, a/k/a Ray,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:08-cr-00045-LHT-1)
Submitted: September 3, 2009 Decided: October 16, 2009
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis Gibson, LAW OFFICE OF DENNIS GIBSON, Asheville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Raymond Barber pleaded guilty to conspiracy to
possess with intent to distribute methamphetamine, in violation
of 21 U.S.C. § 846 (2006), and possession of a firearm in
relation to a drug trafficking crime, in violation of 18
U.S.C.A. § 924(c) (2006 & West Supp. 2009). Barber was
sentenced to a total of 211 months of imprisonment and now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two issues but stating
that there are no meritorious issues for appeal. Barber was
informed of his right to file a pro se supplemental brief but
did not file a brief. We affirm.
In the Anders brief, counsel questions whether the
Government committed prosecutorial misconduct. However, counsel
fails to identify any actions or statements by the prosecutor
demonstrating misconduct. We have thoroughly reviewed the
record and conclude that the Government did not commit
misconduct. See United States v. Scheetz, 293 F.3d 175, 185
(4th Cir. 2002) (stating reversible prosecutorial misconduct
occurs when Government engages in “improper” conduct that
“prejudicially affect[s]” an individual’s “substantial rights so
as to deprive him of a fair trial”).
Counsel next questions whether the district court
judge was biased. A judge “shall disqualify himself in any
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proceeding in which his impartiality might reasonably be
questioned,” 28 U.S.C. § 455(a) (2006); see United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003), or in situations in
which the judge has a personal bias or prejudice against or in
favor of an adverse party. See Liteky v. United States, 510
U.S. 540, 555 (1994). We have thoroughly reviewed the record
and conclude that there is nothing to suggest that the district
court’s impartiality might reasonably be questioned.
We have examined the entire record in accordance with
the requirements of Anders and have found no meritorious issues
for appeal. We therefore affirm the judgment of the district
court. This court requires that counsel inform Barber, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Barber 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. Counsel’s motion must
state that a copy thereof was served on Barber. 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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