United States v. Bunny ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5663
GEORGE BUNNY, IV, a/k/a Georgie,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-94-30135)
Submitted: June 3, 1997
Decided: July 10, 1997
Before HALL, WILKINS, and NIEMEYER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Martin P. Sheehan, SHEEHAN & NUGENT, P.L.L.C., Wheeling,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney, Whee-
ling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
George Bunny pleaded guilty to one count of distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (1994). Following a
Fed. R. Crim. P. 11 hearing, the court accepted Bunny's plea and
deferred adjudging Bunny guilty until the time of sentencing. In May
1995, Bunny offered to become involved in a police operation in an
effort to earn a Government sponsored departure for substantial assis-
tance under United States Sentencing Guidelines Manual, § 5K1.1,
p.s. (1995). The Government moved the district court to amend bond
conditions seeking to permit Bunny to carry a weapon so that he
could work in an undercover capacity with the Bureau of Alcohol,
Tobacco and Firearms. The district court denied the motion. Sentenc-
ing took place in August 1995, at which time Bunny was sentenced
to eighty-seven months in prison followed by three years of super-
vised release and a special assessment fee of $50. Bunny appeals his
sentence.
Bunny's counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). The only issues for which he provided any factual
support or substantive arguments were whether the district court erred
in denying a continuance and whether it is error to differentiate
between crack and powder cocaine for sentencing purposes. Follow-
ing the filing of his Anders brief, Bunny filed a motion to amend the
brief in light of United States v. Goossens, 84 F.3d 697 (4th Cir.
1996). In that brief, he contended that the district court precluded him
from engaging in substantial assistance by refusing to modify his
release conditions. He requested resentencing.
Bunny's counsel first raises the issue of whether the district court
erred in denying a continuance of the sentencing hearing in anticipa-
tion that Congress would amend the sentencing guidelines to reduce
or eliminate the disparity between powder cocaine and cocaine base
for sentencing purposes. Congress did not take such action. See
United States v. Hayden, 85 F.3d 153, 157-58 (4th Cir. 1996). There-
fore, this issue is meritless.
Bunny's counsel next raises the issue that there is no chemical dif-
ference between powder cocaine and cocaine base, and that such dif-
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ferentiation is unjust. As we have previously held, this issue is
meritless. See United States v. Fisher, 58 F.3d 96, 99 (4th Cir. 1995).
Finally, Bunny's counsel requests resentencing in light of
Goossens. In Goossens, the defendant pleaded guilty to child pornog-
raphy offenses and agreed to cooperate with an investigation of crimi-
nal activity by others in exchange for a USSG § 5K1.1 departure for
substantial assistance. Goossens, 84 F.3d at 699. Upon his release,
prior to sentencing, the district court ordered the defendant to cease
his active cooperation in investigative operations. Id. At sentencing
the government did not file a § 5K1.1 motion and Goossens asked for
a downward departure on the ground that the district court's prohibi-
tion was not taken into consideration by the Sentencing Commission.
This Court held that the district court committed a clear abuse of dis-
cretion by imposing the prohibition on cooperation with law enforce-
ment as a condition of Goossens' release. Further, this Court held that
the district court improperly imposed itself in matters not within its
province because it went beyond the standard conditions permitted
under 18 U.S.C.A. § 3142 (West Supp. 1997).
After reviewing Bunny's case in light of Goossens, we find that
Bunny's claim is without merit. Under 18 U.S.C.A.
§ 3142(c)(1)(B)(viii), the district court is permitted to prohibit a
defendant from possessing a weapon. In Bunny's case, the district
court properly denied the removal of that condition and did not pro-
hibit per se Bunny's efforts to cooperate with the Government. We
therefore affirm Bunny's sentence.
In accordance with the requirements of Anders, we have examined
the entire record in this case and find no meritorious issues for appeal.
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. Coun-
sel's motion must state that a copy thereof was served on the client.
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We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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