United States v. Clark

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4952
TIBEL CLARK, a/k/a Felix Johnson,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-01-56)
Submitted: September 27, 2002
Decided: December 10, 2002
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Gordon McBride, MCBRIDE LAW FIRM, Hartsville, South Caro-
lina, for Appellant. Alfred William Walker Bethea, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CLARK
OPINION
PER CURIAM:
Tibel Clark appeals from his convictions and 262-month sentence
for conspiracy to distribute and possession with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a), 846 (2000). Clark’s attorney filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), briefing two issues,
but concluding there was no error. Clark has filed a pro se brief chal-
lenging the sentencing court’s career offender determination and
moving for new counsel on appeal.
The first issue raised in the Anders brief is the adequacy of the
Rule 11 hearing. Because Clark did not move to withdraw his guilty
plea in the district court, this court reviews the Rule 11 proceeding for
plain error. See United States v. Martinez, 277 F.3d 517, 527 (4th
Cir.), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 10, 2002)
(No. 02-5170). An appropriately conducted Rule 11 proceeding raises
a strong presumption that the plea is final and binding. United States
v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995). The record establishes
the Rule 11 hearing was adequate, and the district court did not err
in accepting Clark’s guilty plea. See United States v. DeFusco, 949
F.2d 114, 117, 120 (4th Cir. 1991).
The second issue Clark’s counsel raises is whether the district court
erred in sentencing Clark as a career offender based on two prior con-
victions that occurred on separate occasions in May and December
1990. The argument made on Clark’s behalf is that these offenses
should have been considered related according to USSG § 4A1.2,
comment. (n.3). We review the sentencing court’s findings of fact
related to sentencing for clear error and give deference to its applica-
tion of the Sentencing Guidelines to the facts. See United States v.
Cutler, 36 F.3d 406, 407 (4th Cir. 1994).
Prior convictions are not considered related if the offenses were
separated by an intervening arrest. § 4A1.2, comment. (n.3). Even
prior cases that have been consolidated for sentencing are not
exempted from this rule. United States v. Huggins, 191 F.3d 532, 539
(4th Cir. 1999). The record reflects that Clark was arrested indepen-
UNITED STATES v. CLARK 3
dently for each charge on July 18, 1990 and December 5, 1990.
Therefore, this claim is meritless.
In his pro se filing, Clark asserts he was improperly sentenced as
a career offender because one of the predicate convictions did not
exist. We find no plain error in this respect. See United States v.
Olano, 507 U.S. 725, 731-32 (1993).
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Clark’s conviction and sentence and deny his motion to relieve or
substitute counsel. 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 a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client. 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