United States v. Lee , 16 F. App'x 222 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4056
WILLIE FLOYD LEE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4058
WILLIE FLOYD LEE,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-00-300, CR-94-49)
Submitted: July 31, 2001
Decided: August 15, 2001
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Isaac Louis Johnson, Jr., OFFICE OF
2 UNITED STATES v. LEE
THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In these consolidated appeals, Willie Floyd Lee appeals his convic-
tion and sentence after a guilty plea to possession with intent to dis-
tribute and to distribution of cocaine base, in violation of 21 U.S.C.A.
§§ 841(a)(1) (West 2000) (No. 01-4056), and the district court’s revo-
cation of his supervised release term and the imposition of a twenty-
four-month prison sentence (No. 01-4058). Lee’s attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967),
raising three issues but stating that, in his view, there are no meritori-
ous grounds for appeal. Lee was informed of his right to file a pro se
supplemental brief, but he failed to do so.
The charges against Lee arose out of a controlled buy wherein Lee
sold crack cocaine to a confidential informant in January 2000. After
Lee’s arrest in January 2000 for distributing crack cocaine, the proba-
tion officer filed a petition in district court alleging Lee violated the
terms of his supervised release. At the time of the offense, Lee was
serving a three-year term of supervised release that resulted from his
conviction for conspiracy to possess with intent to distribute and to
distribute cocaine base in 1994.
Following a de novo review of the record, we find that the district
court complied with all the mandates of Fed. R. Crim. P. 11 in accept-
ing Lee’s guilty plea. United States v. Goins, 51 F.3d 400, 402 (4th
Cir. 1995) (providing standard). We also find no plain error in the cal-
culation of Lee’s sentence.* In particular, Lee was correctly sen-
*We have considered the effect of Apprendi v. New Jersey, 530 U.S.
466 (2000), and find that, applying the statutory maximum set out in 21
UNITED STATES v. LEE 3
tenced as a career offender. He was over eighteen years old when he
committed the instant felony offense, which involved a controlled
substance, and he had two prior felony convictions. U.S. Sentencing
Guidelines Manual § 4B1.1 (1998).
At the time Lee committed the present offense of possession with
intent to distribute and distribution of cocaine base, he was serving a
three-year term of supervised release. Lee admitted the supervised
release violation and waived his right to a hearing. The district court
found that Lee had committed the violation alleged by the Govern-
ment, revoked his supervised release, and sentenced Lee to twenty-
four months’ imprisonment, to be served consecutively to the 170-
month sentence for distribution of crack cocaine.
We review the district court’s decision to revoke a defendant’s
supervised release for an abuse of discretion. United States v. Copley,
978 F.2d 829, 831 (4th Cir. 1992). The district court need only find
a violation of a condition of supervised release by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3) (1994). Here, Lee admitted to
the violation alleged in the petition to revoke his supervised release.
Further, because Lee’s underlying conviction was for a Class C fel-
ony, the statutory maximum sentence upon revocation of his super-
vised release was two years incarceration. Id. The district court
determined, pursuant to USSG § 7B1.4 (1998), that the guideline
range for the supervised release violation was 33 to 41 months. How-
ever, pursuant to USSG § 7B1.4(b)(1), the district court was required
to substitute the statutory maximum sentence for the applicable sen-
tencing range. Accordingly, the district court did not abuse its discre-
tion in revoking Lee’s supervised release and sentencing him to
twenty-four months’ imprisonment.
In accordance with the requirements of Anders, we have reviewed
the record for potential error and have found none. Therefore, we
affirm Lee’s conviction and sentence. This court requires that counsel
U.S.C.A. § 841(b)(1)(C) (West 1999), Lee’s sentence does not exceed
that maximum. Accordingly, his sentence does not implicate Apprendi.
See United States v. Promise, ___ F.3d ___, 2001 WL 732389 (4th Cir.
June 29, 2001) (No. 99-4737).
4 UNITED STATES v. LEE
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 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED