United States v. Curry , 213 F. App'x 181 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4429
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS MAYHEW CURRY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00282-WLO)
Submitted: November 30, 2006 Decided: January 16, 2007
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Romallus O. Murphy, LAW OFFICE OF ROMALLUS O. MURPHY, Greensboro,
North Carolina, for Appellant. Kearns Davis, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Marcus Mayhew Curry of drug and firearm
offenses: maintaining places at 113 Melrose Drive, Apartment A,
and 801 Peeler Street, Apartment A, both in Lexington, North
Carolina, for the purpose of distributing crack cocaine (Counts 1
and 6, respectively), in violation of 21 U.S.C.A. § 856(a)(1), (b)
(West 1999 & Supp. 2006); possession with intent to distribute a
mixture containing a detectable amount of crack cocaine, 91.5 grams
of crack cocaine, and 39.6 grams of crack cocaine (Counts 2, 5, and
8, respectively), and 137.2 grams of cocaine hydrochloride (Count
7), in violation of 21 U.S.C. § 841(a)(1) (2000); possession of a
firearm by a convicted felon (Counts 3 and 9), in violation of 18
U.S.C. § 922(g)(1) (2000); and possession of a firearm during and
in relation to a drug trafficking crime (Counts 4 and 10), in
violation of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2006). The
district court sentenced Curry to mandatory life imprisonment after
the Government notified Curry pursuant to 21 U.S.C. § 851 (2000) of
its intent to seek enhanced statutory penalties.
Curry’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), questioning (1) whether the
evidence was sufficient to convict Curry on Counts 1, 2, and 4, and
(2) whether Curry’s prior conviction for felony possession of
cocaine under North Carolina law qualified as a “felony drug
offense” under 21 U.S.C.A. § 802(44) (West Supp. 2006), for
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purposes of applying enhanced statutory penalties. Counsel states,
however, that he has found no meritorious grounds for appeal.
Curry has filed a pro se supplemental brief. We affirm.
Counsel raises as a potential issue the sufficiency of
the evidence on Counts 1, 2, and 4, based upon the small amount of
crack and cash seized from Curry’s apartment. Our review of the
trial transcript convinces us that the evidence was sufficient to
convict. See United States v. Smith, 451 F.3d 209, 216 (4th Cir.)
(discussing standard of review for denial of motion filed under
Fed. R. Crim. P. 29), cert. denied, 127 S. Ct. 197 (2006); see also
United States v. Snow, 462 F.3d 55, 70-71 (2d Cir. 2006)
(discussing elements of § 856 offense); United States v. Collins,
412 F.3d 515, 519 (4th Cir. 2005) (discussing elements of
possession with intent to distribute); United States v. Lomax, 293
F.3d 701, 705 (4th Cir. 2002) (discussion § 924(c) offense).
Curry also contends on appeal that his North Carolina
conviction for felony possession of cocaine did not qualify as a
felony drug offense for purposes of applying the enhanced statutory
penalties in 21 U.S.C.A. § 841(b) (West 1999 & Supp. 2006).
Counsel correctly concedes, however, that this claim is foreclosed
by our decision in United States v. Harp, 406 F.3d 242, 246 (4th
Cir.), cert. denied, 126 S. Ct. 297 (2005).
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none. We have
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carefully reviewed the issues raised in Curry’s pro se supplemental
brief and find them to be without merit. Accordingly, we affirm
Curry’s convictions and sentence. 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 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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