United States v. Berry

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4052
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAMONE BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-134-MU)
Submitted: November 21, 2005 Decided: December 19, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Karen
S. Marston, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ramone Berry appeals his conviction and 120-month
sentence imposed following his guilty plea to conspiracy to possess
with intent to distribute cocaine and cocaine base. For the
reasons discussed below, we affirm.
Berry’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious grounds for appeal but suggesting the district court
erred in subjecting Berry to an enhanced sentence based on his
prior felony drug conviction, in light of United States v. Booker,
125 S. Ct. 738 (2005). Although notified of his right to do so,
Berry has not filed a pro se supplemental brief.
Before turning to the argument suggested by counsel, we
note that our review of the record reveals that the district court
may have failed to comply with the requirements of 21 U.S.C.
§ 851(b) (2000) in subjecting Berry to an enhanced sentence based
on his prior felony drug conviction. Because Berry failed to
challenge the § 851 enhancement on this ground in the district
court, we review for plain error. See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).
In United States v. Ellis, 326 F.3d 593 (4th Cir.), cert.
denied, 540 U.S. 907 (2003), the defendant challenged the district
court’s failure to conduct a § 851(b) colloquy. The government
notified the defendant that it was seeking an enhanced sentence
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based on prior convictions. Id. at 596. The presentence report
also advised the defendant of the aggravating effect of the prior
convictions. The defendant did not object to that portion of the
presentence report and acknowledged the aggravating effect of the
prior convictions at the sentencing hearing. Id. at 599. We
concluded that the district court’s failure to comply with the
notification requirement of § 851(b) was plain error. Id.
Nonetheless, we held that, because the defendant apparently was on
notice of the enhancement and failed to object to it, the error did
not affect his substantial rights. Id. (applying plain error
analysis).
Similarly, in this case, Berry received § 851 notice that
adequately notified him of the prior felony drug offense upon which
the government sought to enhance his sentence. The prior felony
drug offense was included in the presentence report in the
discussion of Berry’s criminal history, yet Berry made no objection
to the validity of this conviction.* The presentence report also
clearly explained the impact of the prior felony drug offense on
Berry’s sentence. Finally, the court made clear at sentencing that
Berry faced a statutory mandatory minimum sentence and gave Berry
an opportunity to speak before pronouncing sentence. Even so,
*
Although Berry initially argued that the conviction did not
constitute a felony under North Carolina law, he later withdrew
this objection after the Supreme Court of North Carolina issued a
decision rejecting this precise argument. See State v. Jones, 598
S.E.2d 125, 127-33 (N.C. 2004).
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Berry did not object to the use of his prior conviction to enhance
his sentence. Because Berry “could not plausibly argue that he
would have done anything different had the district court [complied
with § 851(b)],” id. (internal quotation marks omitted), we find
that the court’s failure to comply with the § 851(b) requirements
did not affect Berry’s substantial rights.
In the Anders brief, counsel argues that the application
of the § 851 enhancement in Berry’s case may violate his Sixth
Amendment rights under Booker. In Booker, the Supreme Court held
that the mandatory manner in which the federal sentencing
guidelines required courts to impose sentencing enhancements based
on facts found by the court, by a preponderance of the evidence,
violated the Sixth Amendment. 125 S. Ct. at 746, 750 (Stevens, J.,
opinion of the Court). The Court remedied the constitutional
violation by severing two statutory provisions, 18 U.S.C.A.
§ 3553(b)(1) (West Supp. 2005) (requiring sentencing courts to
impose a sentence within the applicable guideline range), and 18
U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth
appellate standards of review for guideline issues), thereby making
the guidelines advisory. Id. at 756-57 (Breyer, J., opinion of the
Court). Berry’s sentence did not violate Booker because he was
sentenced to the statutory minimum for his offense. As we recently
made clear in United States v. Robinson, 404 F.3d 850, 862 (4th
Cir.), cert. denied, 126 S. Ct. 288 (2005), “Booker did nothing to
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alter the rule that judges cannot depart below a statutorily
provided minimum sentence.”
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Berry’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 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 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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