United States v. James ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5038
ALFONZO JAMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Richard B. Kellam, Senior District Judge.
(CR-94-115)
Submitted: December 19, 1996
Decided: January 10, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed and remanded by unpublished per curiam opinion.
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COUNSEL
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Fernando Groene, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Alfonzo James appeals the sentence imposed after the district court
found him guilty of two counts of possession of ammunition by a con-
victed felon in violation of 18 U.S.C.A. § 922(g)(1) (West Supp.
1996). James' attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising two potential sentencing
errors but concluding that there are no meritorious grounds for appeal.
James was notified of his right to file a supplemental brief, but he
failed to do so. We affirm.
James contends that the district court failed to award a two-level
reduction under U.S.S.G. § 3E1.11 for acceptance of responsibility
and erred in considering prior arrests in the criminal history category
calculation. James did not object during sentencing. Thus, he waived
any possible error in the computation of his sentence, absent plain
error. United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir.), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3369 (U.S. Nov. 18, 1996) (No.
96-6379). No plain error exists on the record warranting review of
James' sentence.
We note, however, that a conflict exists between the sentencing
hearing transcript and the written judgment with regard to the term of
imprisonment.2 The sentencing hearing transcript reflects a sentence
of forty months imprisonment on the first count of possession of
ammunition by a convicted felon with the sentence in that count to
run concurrently with the forty-six-month prison sentence imposed in
the second count. But the written judgment imposes prison terms of
forty-six months each on the first and second counts to run concur-
rently with each other. Ordinarily, the oral pronouncement of the sen-
tence governs. Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1994). James was sentenced on January 4, 1995.
2 No conflict exists as to the other sentencing terms. Both the oral pro-
nouncement at sentencing and the written judgment imposed a three-year
supervised release term on each count to run concurrently with each
other and a $100 special assessment.
2
1962), cert. denied, 373 U.S. 939 (1963); see United States v.
Daddino, 5 F.3d 262, 266 & n.5 (7th Cir. 1993) (collecting cases rec-
ognizing general rule). Both a forty-month and forty-six-month sen-
tence fall within the applicable guideline range. Accordingly, we
remand the case to the district court to correct the clerical error in the
judgment. See Fed. R. Crim. P. 36.
In accordance with Anders, we have examined the entire record in
this case and find no other meritorious issues for appeal. We affirm
the oral sentence imposed by the district court but remand the case to
the district court to correct the clerical error in the judgment.
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.
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 AND REMANDED
3