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  • United States v. Carlos Bernard Adams, 96 F.3d 1439, 4th Cir. (1996)

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    The court affirmed the conviction and sentence of Carlos Adams who pled guilty to possession of crack cocaine with intent to distribute. Adams' attorney argued there were no meritorious grounds for appeal in a brief submitted according to Anders v. California. The court found that the district court complied with Rule 11 in accepting the guilty plea and that it correctly calculated Adams' offense level and guidelines range. The court also rejected additional arguments raised by Adams in supplemental briefs.

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    Filed: 1996-09-12 Precedential Status: Non-Precedential Citations: 96 F.3d 1439 Docket: 96-4018

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    The court affirmed the conviction and sentence of Carlos Adams who pled guilty to possession of crack cocaine with intent to distribute. Adams' attorney argued there were no meritorious grounds for appeal in a brief submitted according to Anders v. California. The court found that the district court complied with Rule 11 in accepting the guilty plea and that it correctly calculated Adams' offense level and guidelines range. The court also rejected additional arguments raised by Adams in supplemental briefs.

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    United States v. Carlos Bernard Adams, 96 F.3d 1439, 4th Cir. (1996)

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    The court affirmed the conviction and sentence of Carlos Adams who pled guilty to possession of crack cocaine with intent to distribute. Adams' attorney argued there were no meritorious grounds for appeal in a brief submitted according to Anders v. California. The court found that the district court complied with Rule 11 in accepting the guilty plea and that it correctly calculated Adams' offense level and guidelines range. The court also rejected additional arguments raised by Adams in supplemental briefs.

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    of 3

    96 F.

    3d 1439

    NOTICE: Fourth Circuit Local Rule 36(c) states that citation


    of unpublished dispositions is disfavored except for establishing
    res judicata, estoppel, or the law of the case and requires
    service of copies of cited unpublished dispositions of the Fourth
    Circuit.
    UNITED STATES of America, Plaintiff-Appellee,
    v.
    Carlos Bernard ADAMS, Defendant-Appellant.
    No. 96-4018.

    United States Court of Appeals,


    Fourth Circuit.
    Submitted: Aug. 22, 1996.
    Decided: Sept. 12, 1996.

    Langdon D. Long, Assistant Federal Public Defender, Columbia, South


    Carolina, for Appellant. Margaret B. Seymour, United States Attorney,
    Scarlett A. Wilson, Assistant United States Attorney, Columbia, South
    Carolina, for Appellee.
    D.S.C.
    AFFIRMED.
    Before RUSSELL, HALL, and WILLIAMS, Circuit Judges.
    OPINION
    PER CURIAM:

    Carlos Bernard Adams pled guilty to possession of crack cocaine with intent to
    distribute, 21 U.S.C.A. 841 (West 1981 & Supp.1996), nearly a year after he
    was arrested by state authorities during a controlled drug buy in July 1994.
    Adams was sentenced to a term of 98 months imprisonment. His attorney has
    filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967),

    raising two issues but indicating that, in his view, there are no meritorious
    issues for appeal. Adams has filed a pro se supplemental brief, an amended
    supplemental brief, and a reply brief. Finding no error after a review of the
    entire record, we affirm.
    2

    Adams' counsel first suggests that the district court failed to comply adequately
    with Fed.R.Crim.P. 11 in accepting his guilty plea because, in summarizing the
    plea agreement, the prosecutor failed to state that Adams' cooperation had to be
    substantial to earn a motion for a departure. However, because the plea
    agreement so stated, any error in this regard was harmless. Fed.R.Crim.P.
    11(h). Second, he questions whether the district court erred in failing to depart.
    Because the government did not move for a substantial assistance departure,
    USSG 5K1.1,* the district court lacked authority to depart downward on that
    basis.

    We find no merit either in any of the issues raised by Adams in his


    supplemental briefs. His objection to the enhancement for possession of a
    firearm during the offense was withdrawn at sentencing and is not properly
    raised on appeal; moreover, the enhancement was not plainly erroneous. The
    Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 64
    U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos.94-7448/7492), does not apply to
    enhancements under USSG 2D1.1(b)(1). See United States v. Gary, 74 F.3d
    304, 317 n. 11 (1st Cir.), cert. denied, --- U.S. # 6D6D 6D# , 64 U.S.L.W. 3855
    (U.S. June 24, 1996) (No. 95-9074).

    Consequently, Adams did not qualify for a sentence under the safety valve
    provisions of 18 U.S.C.A. 3553(f) (West Supp.1996), which would not have
    lowered his sentence in any case because his guideline range of 87-108 months
    was higher than the mandatory minimum sentence of 60 months.

    The probation officer and the district court correctly calculated Adams' offense
    level. We are unable to discern any bias or prejudice on the part of the district
    court either from the court's comments during the various proceedings or from
    the government's dismissal of federal charges against one co-defendant
    (deferring to state prosecution) or the fact that another received a lower
    sentence than Adams did.

    Adams maintains that the government failed to prove that the substance seized
    was crack cocaine rather than some other form of cocaine base. However, he
    agreed in the district court that the substance was crack and we find that the
    factual basis for his plea was more than adequate. Similarly, Adams' claim that

    the government promised to move for a substantial assistance departure is


    belied by the record below. The plea agreement promised a motion only if the
    government deemed that Adams had provided substantial assistance; at
    sentencing, his attorney stated that the government had not breached the
    agreement by failing to move for a departure.
    7

    Contrary to Adams' assertion, the federal statute of limitations had not run when
    he was arrested by federal authorities in January 1995. An indictment must be
    handed down within five years after the commission of a noncapital offense. 18
    U.S.C. 3282 (1988). Because the record below does not conclusively
    demonstrate that Adams received ineffective assistance of counsel, we will not
    consider this claim on direct appeal. United States v. Williams, 977 F.2d 866,
    871 (4th Cir.1992), cert. denied, 507 U.S. 942 (1993).

    In accordance with Anders, we have examined the entire record in this case and
    find no meritorious issues for appeal. Therefore, we affirm the conviction and
    the 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.

    10

    We dispense with oral argument because the facts and legal contentions are
    adequately presented in the record and briefs, and oral argument would not aid
    the decisional process.

    United States Sentencing Commission, Guidelines Manual (Nov.1995)

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