United States v. Wright ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4239
HAROLD L. WRIGHT,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-97-219)
Submitted: October 26, 2000
Decided: November 20, 2000
Before WILKINS, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Car-
mina Szunyog Hughes, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WRIGHT
OPINION
PER CURIAM:
Harold L. Wright was convicted by a jury of two counts of carjack-
ing, 18 U.S.C.A. § 2119 (West Supp. 2000), for which he was sen-
tenced to fifteen years on count one and twenty-five years on count
three. We vacated and remanded for resentencing in light of the
Supreme Court’s decision in Jones v. United States, 526 U.S. 227(1999). On remand, the district court re-sentenced Wright to 180
months imprisonment on each count, followed by concurrent three-
year terms of supervised release. Wright appeals.
Wright’s attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), addressing whether: (1) the carjack-
ing statute is unconstitutional as applied to him; (2) the maximum
term of imprisonment that could be imposed on both counts is fifteen
years; (3) he should be sentenced under an earlier version of the
guidelines; and (4) the offense level under U.S. Sentencing Guidelines
Manual § 2B3.1 (1997) should not be increased for serious bodily
injury or physical restraint. Counsel concedes, however, that there are
no meritorious issues for appeal. Wright has filed a supplemental pro
se brief in which he essentially restates his attorney’s claims.
Wright first claims that 18 U.S.C. § 2119, as applied to his case,
is an unconstitutional exercise of Congress’ authority under the com-
merce clause because there was no evidence that he crossed state lines
or that the cars were taken for a commercial purpose. However, this
court has held that § 2119 is a constitutional exercise of Congress’
commerce power. See United States v. Cobb, 144 F.3d 319 (4th Cir.
1998).
Next, Wright asserts that, under Jones, the maximum combined
term of imprisonment for both counts was fifteen years. However, he
was convicted of two separate offenses under § 2119, each punishable
by up to fifteen years imprisonment. And the district court has discre-
tion to choose either concurrent or consecutive terms of imprison-
ment. See United States v. Johnson, 138 F.3d 115 (4th Cir. 1998).
UNITED STATES v. WRIGHT 3
Third, Wright claims that he should have been re-sentenced under
the November 1996 version of the guidelines (which were in effect
at the time of the offenses), rather than the November 1997 version.
However, Wright’s sentence was unaffected because his combined
offense level was 32 and his criminal history category VI under either
version of the guidelines.
Finally, Wright challenges, under Jones, the four-point enhance-
ment he received for serious bodily injury, see USSG
§ 2B3.1(b)(3)(B) (count three), and the two-point enhancement for
physical restraint, USSG § 2B3.1(b)(4)(B) (count one). The enhance-
ments Wright received did not increase the statutory maximum sen-
tence. Therefore, Jones does not apply. See Jones, 526 U.S. at 243 n.6
(holding that any fact (other than a prior conviction) that increases the
maximum penalty for a crime must be charged in an indictment, sub-
mitted to a jury, and proven beyond a reasonable doubt). See also
United States v. Aguayo-Delgado, 220 F.3d 926 (8th Cir. 2000) (hold-
ing that a judge-found fact may permissibly alter a defendants sen-
tence so long as it is within the range allowed by statute). Moreover,
we find that the evidence presented at Wright’s trial supported both
enhancements.
In accordance with the requirements of Anders, we have examined
the entire record in this case and find no meritorious issues for appeal.
Accordingly, we affirm Wright’s sentence and deny counsel’s motion
to withdraw. 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.
Counsel’s motion must state that a copy thereof was served on the cli-
ent. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED