United States v. Satterfield

Vacated by Supreme Court, March 21, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4254
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL SHANE SATTERFIELD, a/k/a Michael Shane
Gillispie,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Chief District Judge. (CR-03-339; CR-03-246; CR-03-247)
Submitted: October 1, 2004 Decided: November 5, 2004
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael
Francis Joseph, Assistant United States Attorney, Angela Hewlett
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Shane Satterfield pled guilty to three counts of
bank robbery, 18 U.S.C. § 2113(a) (2000) (Counts 1-3), and was
sentenced as a career offender, U.S. Sentencing Guidelines Manual
§ 4B1.1 (2003), to a term of 160 months imprisonment.
Satterfield’s attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising as a potentially
meritorious issue the district court’s decision not to depart below
the guideline range, but asserting that in his view there are no
meritorious issues for appeal. Satterfield has filed a pro se
supplemental brief raising additional issues. Counsel for
Satterfield has also moved for leave to file a supplemental brief
addressing the effects of Blakely v. Washington, 124 S. Ct. 2531(2004). The motion is granted and the motion is deemed to provide
the supplemental argument concerning Blakely. After consideration
of this court’s decision in United States v. Hammoud, ___ F.3d ___,
2004 WL 2005622 (4th Cir. Sept. 8, 2004) (en banc), we find any
claim made in reliance on Blakely to be without merit. We affirm
the conviction and sentence.
A sentencing court’s decision not to depart is not
reviewable on appeal unless the court’s decision resulted from a
mistaken belief that it lacked the legal authority to depart.
United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002); United
States v. Carr, 271 F.3d 172, 176-77 (4th Cir. 2001). The record
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discloses that the district court was aware of its authority to
depart and exercised its discretion in deciding not to depart.
Therefore, this claim is not properly before us.
In his pro se supplemental brief, Satterfield argues that
the sentencing guidelines are unconstitutional under Blakely and
that Blakely renders his career offender sentence/status erroneous.
In light of our decision in Hammoud, we find no merit in either
claim. Satterfield further contends that he did not qualify for
career offender status under the sentencing guidelines. Because
Satterfield did not object to his career offender status in the
district court, the plain error standard of review applies. Under
the plain error test, United States v. Olano, 507 U.S. 725, 732-37
(1993), a defendant must show that (1) error occurred; (2) the
error was plain; and (3) the error affected his substantial rights.
Id. at 732. 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).
Satterfield first argues that his career offender
sentence violated the Double Jeopardy Clause in two respects.
First, he claims that the guideline calculation violated double
jeopardy by assigning two offense levels under § 2B3.1(b)(1) for
taking the property of a financial institution, and later assigning
one additional offense level “for each bank.” Presumably,
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Satterfield is referring to the multiple-count adjustment under
§ 3D1.4. No error occurred in this respect because the same
conduct may be counted under two or more guideline provisions
unless such double counting is expressly prohibited. United
States v. Wilson, 198 F.3d 467, 472 n.* (4th Cir. 1999). The
Double Jeopardy Clause is not violated by guideline sentence
enhancements. United States v. Williams, 954 F.2d 204, 208 (4th
Cir. 1992). Satterfield asserts that a second double jeopardy
violation occurred when his criminal history was used twice--first
to place him in criminal history category VI, then to add offense
levels because he was a career offender. This claim is also
without merit.
Satterfield next claims that the district court erred
when it counted his third-degree burglary conviction as a predicate
conviction because he served only seven months of the one-to-seven
year sentence. As discussed above, a predicate conviction must be
a felony, but a felony, as defined in the guidelines, is any prior
adult federal or state conviction punishable by imprisonment for a
term exceeding one year, regardless of the actual sentence imposed
or served. USSG §§ 4A1.2(b)(1), 4B1.2, comment. (n.1). Because
Satterfield received a sentence of up to six years confinement, the
conviction was correctly treated as a felony conviction.
Last, Satterfield asserts that he was prejudiced by his
attorney’s deficient performance. Claims of ineffective assistance
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are not usually reviewed on direct appeal. To succeed on a claim
of ineffective assistance on direct appeal, a defendant must show
conclusively from the face of the record that counsel provided
ineffective representation. United States v. James, 337 F.3d 387,
391 (4th Cir. 2003), cert. denied, 124 S. Ct. 1111 (2004). Here,
the record does not conclusively demonstrate that counsel was
ineffective.
Pursuant to Anders, this court has reviewed the record
for reversible error and found none. We therefore affirm the
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 petition
would be frivolous, then counsel may move 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 contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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