United States v. Kearney

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4640 DARRICK LAMONT KEARNEY, Defendant-Appellant.  UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 00-4693 MICHAEL ANTHONY HARMON, JR., Defendant-Appellant.  Appeals from the United States District Court for the District of South Carolina, at Aiken. Cameron McGowan Currie, District Judge. (CR-00-153) Submitted: April 27, 2001 Decided: May 7, 2001 Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. 2 UNITED STATES v. KEARNEY COUNSEL John H. Hare, Assistant Federal Public Defender, Columbia, South Carolina; Herbert W. Louthian, Jr., Deborah R.J. Shupe, LOUTHIAN & LOUTHIAN, Columbia, South Carolina, for Appellants. Dean Arthur Eichelberger, OFFICE OF THE UNITED STATES ATTOR- NEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Michael A. Harmon and Darrick L. Kearney appeal their criminal judgments convicting Harmon of use of a firearm during a crime of violence and Harmon and Kearney of armed bank robbery. Counsel for the Defendants have filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising the issues of whether the court complied with Fed. R. Crim. P. 11 in accepting Harmon’s guilty plea, the validity of Harmon’s 18 U.S.C.A. § 924(c) (West 2000) con- viction in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and whether the court erred in increasing Kearney’s base offense level for the presence of a firearm used by Harmon during the crime, but stat- ing that in their opinions there are no meritorious issues for appeal. Harmon filed a supplemental pro se brief claiming that his coopera- tion was not considered, that he was charged with two similar offenses, and that he was not advised how to qualify for parole or reduce his sentence. Finding no error, we affirm. 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 Harmon’s guilty plea. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995) (providing standard). Harmon’s conviction for bran- dishing a firearm was not imposed in violation of the law. The "bran- UNITED STATES v. KEARNEY 3 dished clause of 18 U.S.C. § 924(c)(1)(A)(ii) sets forth a sentencing factor that need not be charged in the indictment." United States v. Harris, 2001 WL 273146, *19 (4th Cir. Mar. 20, 2001) (No. 00- 4154). We find that the district court did not clearly err in applying a five- level enhancement for the presence of a firearm. Kearney and Har- mon jointly committed and planned the offense. Kearney knew that Harmon was carrying a gun in furtherance of their jointly undertaken criminal activity. Therefore the court properly applied the enhance- ment. U.S. Sentencing Guidelines Manual, §§ 1B1.3(a)(1)(B) & 2B3.1(b)(2)(C) (2000). Harmon’s pro se supplemental claims are also without merit. Har- mon, in fact, received a reduction for acceptance of responsibility; therefore, his cooperation was considered and rewarded. Harmon was also properly charged with armed bank robbery and a firearms offense under 18 U.S.C. § 924(c). The proof of the defendant’s guilt of a predicate offense, in this case armed robbery, is an essential element of a conviction under § 924(c). United States v. Randall, 171 F.3d 195, 204 (4th Cir. 1999). Finally, the court and counsel were not required to advise Harmon regarding ways to qualify for parole and reduce his sentence. We have reviewed the entire record in accordance with the require- ments of Anders and find no error below. We therefore affirm the appeals. This court requires that counsel inform their clients, in writ- ing, of their 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 cli- ent. We dispense with oral argument because the facts and legal con- tentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED