United States v. Gerald Stevens ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4630
GERALD EUGENE STEVENS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Robert Earl Maxwell, Senior District Judge.
(CR-98-1)
Submitted: April 29, 1999
Decided: May 7, 1999
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
David H. Wilmoth, Elkins, West Virginia, for Appellant. Sherry L.
Muncy, OFFICE OF THE UNITED STATES ATTORNEY, Elkins,
West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gerald Eugene Stevens pled guilty to an information charging that
he made a false material statement to a firearms dealer when he
acquired two firearms, see 18 U.S.C.A. § 922(a)(6) (West Supp.
1999). He was sentenced to a term of sixty months imprisonment.
Stevens' attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), raising several issues but stating that
in his view there are no meritorious issues for appeal. Stevens has
filed a pro se supplemental brief raising two additional issues. His
motions to submit the brief out of time are granted. After a thorough
review of the record, we affirm the conviction and sentence.
Addressing first the issues raised by counsel, we find that the dis-
trict court did not clearly err in denying Stevens a three-level adjust-
ment for acceptance of responsibility, see U.S. Sentencing Guidelines
Manual § 3E1.1(b) (1997), because neither his guilty plea--entered
the day of trial--nor any cooperation he may have provided thereafter
was timely.1 The district court correctly determined that Stevens had
seven criminal history points, which placed him in category IV.2 The
court correctly declined to hear Stevens' challenge to a prior West
Virginia conviction for damage to timber because the conviction had
not been reversed, vacated, or declared invalid. See USSG § 4A1.1,
comment. (n.6). The court also properly assigned criminal history
points for burglary sentences Stevens incurred in Pennsylvania and
West Virginia under USSG § 4A1.1(a) and (f), although they were
related cases. The issues raised in Stevens' pro se brief are without
merit.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Stevens'
conviction and sentence. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of the
_________________________________________________________________
1 Stevens received a two-level adjustment for acceptance of responsi-
bility under § 3E1.1(a).
2 The district court departed downward to category III under USSG
§ 4A1.3, p.s.
2
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 repre-
sentation. Counsel'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 record and briefs, and oral argu-
ment would not aid the decisional process.
AFFIRMED
3