United States v. Phillips , 158 F. App'x 517 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY LEE PHILLIPS,
Defendant - Appellant.
No. 05-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
APRIL DENISE ZIEGLER,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-04-83)
Submitted: December 12, 2005 Decided: January 5, 2006
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark F. Underwood, UNDERWOOD LAW OFFICE, INC., Huntington, West
Virginia; Donald L. Stennett, BREWSTER, MORHOUS, CAMERON, CARUTH,
MOORE, KERSEY & STAFFORD, P.L.L.C., Charleston, West Virginia, for
Appellants. Charles T. Miller, Acting United States Attorney,
Stephanie L. Haines, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In consolidated appeals, co-defendants Anthony Lee
Phillips and April Denise Ziegler appeal their guilty plea
convictions and sentences imposed for one count of aiding in the
distribution of cocaine base (Phillips), in violation of 21 U.S.C.
§ 841(a) (2000), 18 U.S.C. § 2 (2000), and conspiracy to distribute
cocaine base (Ziegler), in violation of 21 U.S.C. § 846 (2000).
Counsel for both Appellants have filed a consolidated brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
they find no meritorious grounds for appeal, but challenging the
district court’s denial of Phillips’ motion for a sentence
reduction based on minimal role. The Government has filed an
answering brief. Phillips has filed a pro se supplemental brief
challenging his sentence under Blakely v. Washington, 542 U.S. 296(2004). Finding no reversible error, we affirm.
In his pro se supplemental brief, Phillips asserts that
because he only sold .83 grams of cocaine base, the district
court’s finding that he was responsible for more than 5 grams of
cocaine base amounts to an impermissible judicial enhancement, in
violation of his Sixth Amendment rights under United States v.
Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court held
that the federal sentencing guidelines’ mandatory scheme, which
provides for sentencing enhancements based on facts found by the
court, violated the Sixth Amendment. Id. After Booker, courts
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must calculate the appropriate guideline range, consider the range
in conjunction with other relevant factors under the guidelines and
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2005), and impose a
sentence. If a court imposes a sentence outside the guideline
range, the district court must state its reasons for doing so.
United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). This
remedial scheme applies to any sentence imposed under the mandatory
guidelines, regardless of whether the sentence violates the Sixth
Amendment. Id. (citing Booker, 125 S. Ct. at 769).
Because Phillips did not raise this claim in the district
court, his sentence is reviewed for plain error. Hughes, 401 F.3d
at 547 (citing United States v. Olano, 507 U.S. 725, 731-32
(1993)). To demonstrate plain error, a defendant must establish
that error occurred, that it was plain, and that it affected his
substantial rights. Olano, 507 U.S. at 731-32; Hughes, 401 F.3d at
547-48. If a defendant establishes these requirements, the court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
Hughes, 401 F.3d at 555 (internal quotation marks and citation
omitted).
We conclude that Phillips suffered no Sixth Amendment
violation. Phillips’ plea agreement clearly and unequivocally
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stipulates to his involvement in the distribution of more than five
grams of cocaine base. Moreover, at his change of plea hearing,
Phillips assured the court that he was pleading guilty to
distributing .83 grams of cocaine base as named in the indictment,
and that he was involved with an additional 4.17 grams of cocaine
base throughout the course of the conspiracy. (J.A. at 97-98).
Thus, because Phillips expressly admitted to the amount of drugs
attributed to him, we find that he suffered no Sixth Amendment
violation.
Phillips’ counsel asserts that the district court erred
by refusing to grant him a one-level reduction because he was only
a minor participant in the conspiracy. However, a careful review
of the sentencing transcript reveals that counsel did not move for
a role reduction pursuant to U.S. Sentencing Guidelines Manual
§ 3B1.2 (2004) during sentencing. Instead, while arguing the
factors listed in 18 U.S.C.A. § 3553(a), counsel asserted that
Phillips was the “most minor participant” in the conspiracy, and
urged the court to sentence Phillips below the applicable
guidelines range. The district court ultimately rejected this
request.
We hold that Ziegler suffered no Sixth Amendment
violation as she clearly admitted to the drugs attributed to her,
and received no sentencing enhancements. Moreover, we find that
because the district court imposed a sentence within the advisory
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guidelines range and below the statutory maximum for the offense,
Ziegler’s sentence was also reasonable.* Cf. Hughes, 401 F.3d at546-47 (citing Booker, 125 S. Ct. at 764-65, 767) (noting after
Booker, sentencing courts should determine the sentencing range
under the guidelines, consider the other factors under § 3553(a),
and impose a reasonable sentence within the statutory maximum).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm both Phillips’ and Ziegler’s
convictions and sentences. This court requires that counsel inform
their respective clients, in writing, of their right to petition
the Supreme Court of the United States for further review. If
either client requests that a petition be filed, but counsel
believes that such 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
*
The statutory maximum for violating 21 U.S.C. § 841(b)(1)(A)
(2000) is five to forty years in prison.
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