United States v. Wyand ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4635
MATTHEW C. WYAND,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4674
MATTHEW C. WYAND,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-99-2)
Submitted: March 31, 2000
Decided: September 15, 2000
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Byron Craig Manford, Martinsburg, West Virginia, for Appellant.
Thomas Oliver Mucklow, Assistant United States Attorney, Martins-
burg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Matthew C. Wyand appeals his conviction entered on his guilty
plea to distribution of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1) (1994), and a related firearms offense in violation of 18
U.S.C. § 924(c)(1) (1994). Wyand noted a timely appeal and his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
the possibility that the district court lacked jurisdiction over Wyand's
offense because the investigation was carried out by state and local
officials. Counsel also suggested that it may have been error for the
prosecutor to pursue a conviction under 18 U.S.C.§ 924(c) when
Wyand's sentence could have been enhanced for that conduct under
the U.S. Sentencing Guidelines. See USSG § 2D1.1(b)(1) (Nov.
1998). Wyand filed a supplemental brief asserting that his conviction
under 18 U.S.C. § 924(c) was not supported by sufficient evidence.
Finding no merit to any of these claims of error, and discovering no
other reversible error in our review of the record, we affirm the con-
viction and sentence.
Wyand's failure to raise before the district court the possibility that
the district court lacked jurisdiction over his criminal offenses as a
result of the fact that state and local officials carried out the investiga-
tion limits the scope of review to a search for plain error. See Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
There is no plain error with respect to this contention because juris-
diction over the offenses is furnished by the statutes criminalizing the
behavior, not by virtue of the investigating officials. See 18 U.S.C.
§ 924(c); 21 U.S.C. § 841. Moreover, this court has recently approved
a program which directly involves numerous defendants investigated
and arrested by state officials and ultimately prosecuted in federal
court. See United States v. Nathan, 202 F.3d 230, 233 (4th Cir. 2000).
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There was no plain error in the district court's failure to sua sponte
decline to exercise jurisdiction over this criminal prosecution on this
ground.
Similarly, there was no plain error in the district court's failure to
force the prosecution to seek a sentencing enhancement rather than a
conviction under 18 U.S.C. § 924(c) for Wyand's use of a gun during
a drug trafficking offense. See United States v. Foote, 898 F.2d 659,
666 (8th Cir. 1990). Finally, a defendant who pleads guilty to violat-
ing § 924(c) relinquishes his right to challenge the sufficiency of the
evidence presented as a factual basis for his guilty plea. See United
States v. Willis, 992 F.2d 489, 490-91 (4th Cir. 1993). Accordingly,
by pleading guilty Wyand relinquished his right to challenge the suffi-
ciency of the evidence presented as a factual basis for his guilty plea.
See id. at 490. Moreover, Wyand accepted the guns as payment for
the crack cocaine, however temporarily, and cannot now complain
that the guns were not used in the drug transaction. Smith v. United
States, 508 U.S. 223, 228-29 (1993); Bailey v. United States, 516 U.S.
137, 148 (1995).
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel's motion must state that a copy thereof was served on
the client.
Wyand's conviction is affirmed. The Government's motion to dis-
miss this appeal is denied and the motion to stay the briefing schedule
is denied as moot. 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
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