United States v. John Bert Fisher , 976 F.2d 728 ( 1992 )

976 F.2d 728

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of AMERICA, Plaintiff-Appellee,
v.
John Bert FISHER, Defendant-Appellant.

No. 92-6247.

United States Court of Appeals,
Fourth Circuit.

Submitted: September 11, 1992
Decided: October 5, 1992

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert J. Staker, District Judge. (CR-89-146-3, CA-91-813-3)

John Bert Fisher, Appellant Pro Se.

Paul Arthur Billups, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

S.D.W.Va.

Affirmed.

Before HALL, SPROUSE, and HAMILTON, Circuit Judges.

PER CURIAM:

OPINION

1

John Bert Fisher appeals from the district court's order refusing relief under 28 U.S.C. § 2255 (1988). Our review of the record and the district court's opinion discloses that this appeal is without merit.* Accordingly, we affirm on the reasoning of the district court. United States v. Fisher, Nos. CR-89-146-3, CA-91-813-3 (S.D.W. Va. Jan. 16, 1992). 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

*

Fisher argues that his counsel's representation was inadequate because he did not object to the district court's imposition of an enhanced penalty against Fisher as a career offender under the guidelines. He asserts that before his guilty plea information regarding his previous convictions should have been filed with the court. See 21 U.S.C. § 851(a)(1) (1988). The majority of courts which have previously considered this argument agree that this statutory provision does not apply to the assignment of career offender status under the sentencing guidelines, but when the government seeks enhanced penalties under the Comprehensive Drug Abuse Prevention and Control Act. See United States v. Whitaker, 938 F.2d 1551 (2d Cir. 1991), cert. denied, 60 U.S.L.W. 3520 (U.S. 1992); Young v. United States, 936 F.2d 533 (11th Cir. 1991); United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990), cert. denied, 59 U.S.L.W. 3599 (U.S. 1991)