United States v. Amos , 261 F. App'x 452 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HAROLD PHILLIP AMOS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
District Judge. (2:06-cr-00086)
Submitted: December 19, 2007 Decided: January 4, 2008
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael R. Cline, MICHAEL R. CLINE LAW OFFICE, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, W. Chad Noel, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Phillip Amos was convicted of possession of
oxycodone with intent to distribute, 21 U.S.C. § 841(a) (2000), and
was sentenced to a term of 120 months imprisonment. Amos’ attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), questioning the district court’s determination that Amos
obstructed justice by giving perjured testimony at his trial, see
U.S. Sentencing Guidelines Manual § 3C1.1 (2005), but stating that,
in his view, there are no meritorious issues for appeal. Amos has
filed a pro se supplemental brief challenging the obstruction of
justice adjustment and his criminal history score. We affirm.
Amos was arrested with a large number of oxycodone pills
after he arranged to sell oxycodone to an informant. At his trial,
he testified that the oxycodone he possessed when he was arrested
was for his own use. The district court determined that he had
testified falsely. Our review of the record discloses that the
district court’s decision was not clearly erroneous and that its
findings were adequate under United States v. Dunnigan, 507 U.S. 87(1993).
In his pro se supplemental brief, Amos argues that he was
incorrectly awarded two criminal history points for committing the
instant offense, including any relevant conduct, while on
probation. USSG § 4A1.1(d), comment. (n.4). Because this issue
was not raised in the district court, it is reviewed for plain
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error. United States v. Olano, 507 U.S. 725, 732-37 (1993). The
two points were awarded in the presentence report based on the
informant’s testimony that she bought oxycodone from Amos for two
years prior to her arrest on March 3, 2006. Amos resided in
Baltimore, Maryland, but made regular visits to West Virginia. He
was convicted of a firearm offense and possession of oxycodone in
West Virginia in 2005 and sentenced to one year of probation, which
apparently ended on February 23, 2006. At the sentencing hearing,
the district court decided that the informant was not credible as
to the drug quantities she said she purchased from Amos, but
concluded that he had sold her oxycodone at some point prior to his
arrest on March 27, 2006. Although the court made no finding
concerning specific prior transactions between Amos and the
informant, we conclude that Amos has not shown that error occurred,
i.e., that he did not sell the informant oxycodone while he was on
probation. If error did occur, it was not plain.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the district court’s 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 such 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
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must state that a copy thereof was served on the client. 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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