United States v. Alfred

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4624
JOSEPH WILLIAM ALFRED, a/k/a
Butter,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CR-01-827)
Submitted: March 17, 2003
Decided: March 28, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
2 UNITED STATES v. ALFRED
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joseph W. Alfred pled guilty to possession with intent to distribute
five grams or more but less than fifty grams of cocaine base, in viola-
tion of 21 U.S.C. § 841(a)(1) (2000). The district court sentenced
Alfred to eighty-seven months of imprisonment, to be followed by a
five-year term of supervised release.
Alfred’s counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there were no meritorious grounds for
appeal, but raising two issues: whether the district court complied
with Federal Rule of Criminal Procedure 11 and whether the district
court properly determined Alfred’s offense level and sentence. Alfred
filed a pro se supplemental brief also challenging his sentence and
further arguing that the Government engaged in prosecutorial miscon-
duct and that § 841 is unconstitutional.
Because Alfred failed to object or make a motion to withdraw his
guilty plea, we review his plea hearing for plain error. United States
v. Martinez, 277 F.3d 517, 524-27 (4th Cir.), cert. denied, 123 S. Ct.
200 (2002). Under the plain error standard, Alfred must show: (1)
there was error; (2) the error was plain; and (3) the error affected sub-
stantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).
Even when these conditions are satisfied, this court may exercise its
discretion to notice the error only if the error "seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings." Id.(internal quotation marks omitted).
The record establishes that the district court fully complied with
Rule 11 and did not err in accepting Alfred’s guilty plea. We further
find that the district court correctly calculated the sentencing guide-
line range. Because the court properly applied the sentencing guide-
lines, and Alfred’s sentence was within the statutory maximum
UNITED STATES v. ALFRED 3
penalty, we decline to review the district court’s decision to sentence
Alfred at the high end of the guideline range. See United States v.
Porter, 909 F.2d 789, 794 (4th Cir. 1990). Furthermore, we find that
Alfred’s claim under Apprendi v. New Jersey, 530 U.S. 466 (2000),
is without merit.
Likewise, we conclude that Alfred’s claim of prosecutorial miscon-
duct fails because he has not shown that he was prejudiced by any
improper prosecutorial conduct. See United States v. Mitchell, 1 F.3d
235, 240 (4th Cir. 1993). Finally, we find no merit in Alfred’s argu-
ment that § 841 is unconstitutional. See United States v. McAllister,
272 F.3d 228 (4th Cir. 2001); United States v. Leshuk, 65 F.3d 1105,
1112 (4th Cir. 1995).
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 Alfred’s conviction 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 a peti-
tion 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 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