United States v. Brunson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4152
DALTON OSBURN BRUNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-01-293)
Submitted: September 23, 2002
Decided: October 10, 2002
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen, III, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
2 UNITED STATES v. BRUNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Dalton O. Brunson pleaded guilty to distribution of 41.5 grams of
cocaine, 21 U.S.C. § 841(a)(1) (2000) (Count One); carrying a fire-
arm during a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i)
(2000) (Count Four), and possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) (2000) (Count Five). He was sentenced
as a career offender to 166 months on Count One, sixty months on
Count Four, to run consecutively to the 166-month sentence, and 120
months on Count Five, to run concurrently with the sentence on
Count One. Brunson’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), complaining about the dis-
trict court’s denial of Brunson’s motion for downward departure.
Brunson has filed a pro se supplemental brief. We affirm.
Brunson was sentenced as a career offender. See U.S. Sentencing
Guidelines Manual § 4B1.1 (2001). Brunson moved for a downward
departure, claiming that his designation as a career offender signifi-
cantly overstated the seriousness of his criminal history. After hearing
argument, the district court denied Brunson’s motion. Because the
district court recognized that it had the authority to depart, its depar-
ture decision is not reviewable on appeal. See United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
Brunson also claims that he should not have been classified as a
career offender. One of Brunson’s two predicate felonies for career
offender status was his conviction in North Carolina of assault on a
female. At the time Brunson was convicted of that offense, it was
punishable by up to two years in prison. Several months following his
conviction, the North Carolina legislature reduced the penalty to 150
days. Brunson contends that, given the subsequent reduction in the
penalty, it is unfair to count the offense as one of the qualifying felo-
nies under USSG § 4B1.1. We rejected a similar argument in United
States v. Johnson, 114 F.3d 435, 444-45 (4th Cir. 1997).
UNITED STATES v. BRUNSON 3
In both the Anders brief and the pro se brief, Brunson contends that
it is a violation of substantive due process to treat as career offenders
all defendants with at least two previous convictions for violent felo-
nies or serious drug offenses, regardless of the number and severity
of those offenses. We approved such treatment in United States v.
Adkins, 937 F.2d 947, 952 (4th Cir. 1991), and we therefore find
Brunson’s position to be without merit.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Brunson’s convictions 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 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 of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED