United States v. Herring , 339 F. App'x 355 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4051
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES TYSON HERRING,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. James A. Beaty,
Jr., Chief District Judge. (1:07-cr-00406-JAB-1)
Submitted: July 22, 2009 Decided: August 5, 2009
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher A. Beechler, Winston-Salem, North Carolina, for
Appellant. Robert Albert Jamison Lang, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Tyson Herring pled guilty to possession with
intent to distribute crack cocaine and was sentenced to 240
months in prison. He now appeals. His attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for review.
Herring has filed a pro se brief raising sentencing issues. We
affirm.
In his informal brief, Herring contends that he was
improperly sentenced as a career offender because the two prior
convictions on which career offender status was based were not
charged in the indictment or proven to a jury beyond a
reasonable doubt. We squarely rejected such an argument in
United States v. Cheek, 415 F.3d 349 (4th Cir. 2005). In Cheek,
we wrote:
[T]he Supreme Court continues to hold that the Sixth
Amendment (as well as due process) does not demand
that the mere fact of a prior conviction used as a
basis for a sentencing enhancement be pleaded in an
indictment and submitted to a jury for proof beyond a
reasonable doubt.
Id. at 352; see also United States v. Booker, 543 U.S. 220, 244
(2005); Almendarez-Torres v. United States, 523 U.S. 224, 243-44
(1998).
Herring also claims that the felony drug conviction
upon which the Government relied in its 21 U.S.C. § 851 (2006)
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notice was dismissed. However, he offers nothing to
substantiate this claim. Further, according to the presentence
report, Herring pled guilty in 2007 to felony possession with
intent to sell and deliver cocaine. The matter was consolidated
for judgment with another offense, and Herring was sentenced to
a suspended sentence of eight to ten months. Additionally, at
his Fed. R. Crim. P. 11 hearing, Herring acknowledged having the
prior conviction in question. We conclude that his claim is
without merit.
We have reviewed the entire record in accordance with
Anders and have not identified any meritorious issues for
appeal. Accordingly, we affirm. This court requires counsel to
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, counsel may move in
this court to withdraw from representation. Counsel’s motion
must state that a copy of the motion 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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