United States v. Stowe , 383 F. App'x 277 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4760
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTEDIOUS STOWE,
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. (3:07-cr-00108-RJC-1)
Submitted: May 19, 2010 Decided: June 15, 2010
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua D. Davey, MCGUIREWOODS LLP, 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Unpublished opinions are not binding precedent in this circuit.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:
Antedious Stowe pled guilty, pursuant to a plea
agreement, to possession with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006), and
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c) (2006). Appellate
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), questioning whether the district court erred in
refusing to allow Stowe to withdraw his guilty plea, and erred
in finding that Stowe qualified as a career offender, but
contending there are no meritorious issues on appeal. Stowe has
filed a pro se supplemental brief and the Government has elected
not to file a brief. * We affirm.
We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United
States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). “A
defendant has no absolute right to withdraw a guilty plea . . .
after a district court has accepted the plea.” United States v.
Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation
marks and citation omitted). Once the district court has
*
Though Stowe waived his right to appeal his sentence in
the plea agreement, the Government fails to assert the waiver as
a bar to the appeal. Accordingly, we consider the issues raised
in the Anders brief and conduct an Anders review. See United
States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
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accepted a defendant’s guilty plea, it is within the court’s
discretion whether to grant a motion to withdraw it. See United
States v. Battle, 499 F.3d 315, 319 (4th Cir. 2007). The
defendant bears the burden of showing a “fair and just reason”
for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B).
“[A] ‘fair and just’ reason . . . is one that essentially
challenges . . . the fairness of the Rule 11 proceeding . . . .”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
After reviewing the record, we find that Stowe did not expressly
move to withdraw his guilty plea. Therefore, this issue is
without merit.
Stowe’s counsel next challenges the district court’s
determination that Stowe qualified as a career offender. We
review such questions for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007). Under USSG § 4B1.1(a),
A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the
defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of
violence or a controlled substance offense.
For purposes of § 4B1.1(a), a crime of violence is defined as an
offense under federal or state law punishable by an imprisonment
term of one year or more that: “(1) has as an element the use,
attempted use or threatened use of physical force against the
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person of another, or (2) is burglary of a dwelling or
extortion, involves use of explosives or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” USSG § 4B1.2(a). A controlled substance
offense is defined as a federal or state offense that is
punishable by an imprisonment term of one year or more “that
prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of
a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” USSG § 4B1.2(b). After
reviewing the record, we find that the district court correctly
classified Stowe as a career offender.
We have reviewed the issues raised in Stowe’s pro se
supplemental brief and find them to be without merit. In
accordance with Anders, we have reviewed the entire record and
have not found any meritorious issues for appeal. Accordingly,
we affirm the district court’s judgment. This court requires
counsel to 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,
counsel may move in this court to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served
on the client. We dispense with oral argument because the facts
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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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