United States v. Powell , 389 F. App'x 287 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESSYE WAYNE POWELL,
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. (3:06-cr-00189-RJC-1)
Submitted: July 14, 2010 Decided: July 26, 2010
Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Amy E. Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jessye Wayne Powell appeals his 262 month sentence for
conspiracy to distribute and possess marijuana, in violation of
21 U.S.C. §§ 841(b)(1)(A), b(1)(D), and 846 (2006), and
conspiracy to launder money, in violation of 18 U.S.C. § 1956(h)
(2006). Appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), contending that there
are no meritorious issues on appeal, but arguing that the
district court “erred in denying Mr. Powell’s motion to strike
the Government’s information.” 1 Powell has filed a pro se
supplemental brief, in which he argues that the district court
erred in finding that he qualified as a career offender. The
Government has declined to file a brief. We affirm.
Powell’s counsel contends that the district court
erred in denying his motion to strike the Government’s 21 U.S.C.
§ 851 (2006) information at sentencing, on the grounds that the
information was no longer effective, as the Government failed to
refile the information after the filing of its second
superseding indictment. Questions regarding the adequacy of a
1
Counsel also argues that this claim is not encompassed by
the waiver of appellate rights contained in Powell’s plea
agreement. We need not evaluate the scope of Powell’s appellate
waiver, however, as the Government has declined to argue for its
enforcement. See United States v. Blick, 408 F.3d 162, 168 (4th
Cir. 2005).
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21 U.S.C. § 851 notice are reviewed de novo. United States v.
Jackson, 544 F.3d 1176, 1185 (11th Cir. 2008).
Powell’s contention is without merit. Every circuit
to have addressed this issue in a published decision has held
that the government need not refile its § 851 information after
the filing of a superseding indictment. See United States v.
Dickerson, 514 F.3d 60, 64 n.3 (1st Cir. 2008) (noting that the
prosecution need not file a second § 851 information after a
superseding indictment); United States v. Cooper, 461 F.3d 850,
853 (7th Cir. 2006) (same); United States v. Kamerud, 326 F.3d
1008, 1014 (8th Cir. 2003) (same); United States v. Wright, 932
F.3d 868, 882 (10th Cir. 1991) (same), overruled on other
grounds by United States v. Flowers, 464 F.3d 1127, 1130 (10th
Cir. 2006). Accordingly, we reject Powell’s contention.
We have reviewed the issues raised in Powell’s pro se
supplemental brief and found them to be unavailing.
Additionally, we have reviewed the entire record in accordance
with Anders, 2 and found there are no meritorious issues on
appeal. Accordingly, we affirm the judgment of the district
2
Though Powell waived his right to appeal, the Government
has not sought enforcement of the waiver. Accordingly, this
court may conduct its review pursuant to Anders. United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (stating
that, if Anders brief is filed in case with appeal waiver,
Government’s failure to respond “allow[s] this court to perform
the required Anders review”).
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court. We require 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
addressed in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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