United States v. Miller

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4315
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:04-cr-00195-ALL)
Submitted: September 28, 2006 Decided: October 5, 2006
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Robert John Gleason, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Miller pled guilty to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g) (2000). The
district court sentenced Miller to seventy-seven months’
imprisonment, three years of supervised release, and ordered
payment of a $100 statutory assessment.* Miller’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal,
but questioning whether Miller’s attorney was ineffective for
failing to lodge objections to the presentence investigation
report, and asserting that Miller’s base offense level was
incorrectly calculated. Miller was given an opportunity to file a
supplemental pro se brief, and has asserted that his attorney was
ineffective for failing to move for a downward departure.
We find to be without merit Miller’s challenge to his
sentence. While he is correct that the two prior felony controlled
substance convictions on which his base offense level was founded
were consolidated for sentencing purposes, they were on offenses
separated by an intervening arrest, and thus are not considered to
be “related” for sentencing purposes. See U.S. Sentencing
Guidelines Manual (“USSG”), § 4A1.2, comment. (n.3) (2004). Hence,
*
The probation officer calculated an advisory sentencing
guideline range applicable to Miller of seventy-seven to ninety-
seven months’ imprisonment, founded on a total offense level of
twenty-one and a criminal history category of VI.
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the district court properly applied a base offense level of twenty-
four to Miller, pursuant to USSG § 2K2.1(a)(2), rather than the
lesser level set forth in § 2K2.1(a)(4)(A).
Miller’s claim of ineffective assistance of counsel must
be brought in a collateral proceeding under 28 U.S.C. § 2255(2000), unless it conclusively appears from the face of the record
that his counsel was ineffective. United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991). Because the record does not
conclusively establish ineffective assistance of counsel, we
decline to consider this claim on direct appeal.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Miller’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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