United States v. Wade , 154 F. App'x 403 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY RUDOLPH WADE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-264)
Submitted: October 21, 2005 Decided: November 22, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Louis C. Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael
Francis Joseph, Assistant United States Attorney, Angela Hewlett
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Rudolph Wade pled guilty to conspiracy to possess
with intent to distribute in excess of 500 grams of cocaine
hydrochloride, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2000), and
possession of counterfeit money, 18 U.S.C. § 472 (2000). The
district court sentenced Wade to 216 months of imprisonment.
Wade’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal, but asserting the following claims: (1) the district
court abused its discretion in denying Wade’s motion to withdraw
his guilty plea; and (2) the district court’s sentence was too
severe. In a supplement, counsel challenges the constitutionality
of Wade’s sentence under Blakely v. Washington, 542 U.S. 296(2004). Wade has filed a pro se supplemental brief. Finding no
reversible error, we affirm.
A defendant who seeks to withdraw his guilty plea before
sentencing must demonstrate a “fair and just reason” for withdrawal
of the plea. Fed. R. Crim. P. 11(d)(2)(B). A “fair and just”
reason is one that essentially “challenges the fairness of the Fed.
R. Crim. P. 11 proceeding” or “challenges the fulfillment of a
promise or condition emanating from the proceeding.” United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). A court should
closely scrutinize the Rule 11 colloquy and attach a strong
presumption that the plea is final and binding if the Rule 11
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proceeding is adequate. Id. We review the district court’s denial
of a motion to withdraw a guilty plea for abuse of discretion.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). After
reviewing the record, we find that the district court did not abuse
its discretion by finding no “fair and just reason” for the
withdrawal of Wade’s guilty plea.
Wade also alleges that the district court’s sentence was
too severe. Because we find that the district court correctly
calculated the sentencing guideline range and Wade’s sentence was
within the statutory maximum penalty, we decline to review the
district court’s decision to sentence Wade in the middle of the
guideline range. United States v. Porter, 909 F.2d 789, 794 (4th
Cir. 1990).
Wade further challenges his sentence as a career
offender, see U.S. Sentencing Guidelines Manual § 4B1.1 (2003),
under Blakely and United States v. Booker, 125 S. Ct. 738 (2005).
Specifically, he argues that his sentence was improperly enhanced
based on a prior conviction. Because Wade did not object below,
this claim is reviewed for plain error. United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). This court has held that, where
the facts are undisputed, the application of the career offender
enhancement falls within the exception for prior convictions.
United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);
accord United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)
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(“Career offender status is not ‘a sentencing judge’s determination
of a fact other than a prior conviction.’ . . . Booker explicitly
excepts from Sixth Amendment analysis the third component of the
crime of violence determination, the fact of two prior
convictions.”); see also United States v. Harp, 406 F.3d 242, 247
(4th Cir. 2005) (finding no plain error in the district court’s
designation of Harp as a career offender), cert. denied, S. Ct.
, 2005 WL 2011656 (U.S. Oct. 3, 2005) (No. 05-5887).
Accordingly, we find that the district court did not err in
designating Wade as a career offender and that Wade’s sentence does
not violate the Sixth Amendment in this regard.*
We have reviewed Wade’s claims in his supplemental brief
and various supplements and find them without merit. In accordance
with Anders, we have reviewed the entire record in this case and
have found no meritorious issues for appeal. We therefore affirm
Wade’s conviction and sentence. To the extent that Wade challenges
the court’s imposition of a sentence with a properly calculated
guideline range, we dismiss that portion of the appeal. 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
*
Furthermore, Wade has failed to demonstrate that the plain
error in sentencing him under a mandatory guideline scheme affected
his substantial rights. See United States v. White, 405 F.3d 208,
223 (4th Cir. 2005).
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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 IN PART;
DISMISSED IN PART
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