United States v. Bellamy , 336 F. App'x 285 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5094
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARK BELLAMY, a/k/a Big Mark,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (4:03-cr-00474)
Submitted: May 21, 2009 Decided: July 2, 2009
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven Michael Hisker, Duncan, South Carolina, for Appellant.
Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Bellamy appeals his amended judgment convicting
him of conspiracy to distribute and possession with intent to
distribute fifty grams or more of cocaine base and five
kilograms or more of cocaine, in violation of 21 U.S.C.A. §§
841(b)(1)(A), 846 (West 1999 & Supp. 2009). Bellamy’s counsel
filed a brief under Anders v. California, 386 U.S. 738 (1967),
asserting there were no meritorious issues for appeal, but
raising for the court’s consideration whether the district court
erred sentencing Bellamy as a career offender and whether it
erred denying counsel’s request for a downward departure based
on Bellamy’s post-conviction rehabilitation and his minimal
participation in the conspiracy. Bellamy filed a pro se
supplemental brief raising several issues. The Government did
not file a brief. We affirm.
With respect to the challenges to the career offender
designation, we find no error with the type of state convictions
used by the district court to reach that designation. See U.S.
Sentencing Guidelines Manual § 4B1.1(a) (2002) (defining career
offender). Insofar as Bellamy claims one of the prior
convictions should not have been considered because it did not
become final until after he withdrew from the conspiracy, we
note he did not raise this issue in the district court and
review is for plain error. United States v. Olano, 507 U.S.
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725, 732 (1993). We find no plain error because Bellamy cannot
show prejudice. His base offense level of thirty-eight and
criminal history category VI were also based on drug quantity
and the points accumulated for prior convictions and would not
have changed even if he was not considered a career offender.
In addition, Bellamy had at least one other felony conviction
that could have been considered.
Counsel’s claim that the court erred by not granting
the motion for a downward departure is not reviewable by this
Court. See United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008).
With respect to the remaining issues Bellamy raises in
his pro se supplemental brief, we note that his post-offense
rehabilitation was taken into consideration when his offense
level was reduced for acceptance of responsibility. We find no
error in the court’s failure to specifically address this issue
when it imposed sentence. See USSG § 3E1.1, comment.
(n.1(b),(g)). Bellamy’s claim that the district court erred by
not reducing his offense level for being only a minor player in
the conspiracy is without merit. Review of this issue is for
plain error because Bellamy did not raise this issue at
sentencing. Olano, 507 U.S. at 732. Bellamy bought, sold, and
transported controlled substances and he admitted to converting
cocaine to crack. He was found responsible for eleven kilograms
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of crack cocaine. We find no error in the court’s decision not
to consider whether Bellamy was a minor participant. See United
States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992) (A seller
possesses “a central position in a drug distribution
conspiracy,” even if he participated in the conspiracy for a
relatively brief period of time.); see also United States v.
Daughtrey, 874 F.2d 213, 218-19 (4th Cir. 1989).
We review a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007). The
first step in this review requires us to ensure that the
district court committed no significant procedural error, such
as improperly calculating the Guidelines range or treating the
Guidelines as mandatory. Id. We then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Id. When reviewing a sentence
on appeal, we presume a sentence within a properly calculated
Guidelines range is reasonable. United States v. Allen, 491
F.3d 178, 193 (4th Cir. 2007). There was no procedural error at
sentencing and we find Bellamy’s sentence within the Guidelines
was reasonable.
Accordingly, we affirm. In accordance with Anders, we
have reviewed the record in this case and have found no
meritorious issues for appeal. We therefore affirm Bellamy’s
conviction and sentence. This court requires counsel inform his
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client, in writing, of the right to petition the Supreme Court
of the United States for further review. If he requests a
petition be filed, but counsel believes 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 Bellamy. 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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