UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4935
JAMES MICHAEL MARTIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-00-136)
Submitted: February 26, 2002
Decided: April 16, 2002
Before WILKINS, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Joseph E. Zeszotarski, Jr., POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina, for Appellant. John Stuart Bruce, United States Attor-
ney, Anne M. Hayes, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MARTIN
OPINION
PER CURIAM:
James Michael Martin pleaded guilty to one count of maintaining
a place for the purpose of manufacturing, distributing, and using mari-
juana in violation of 21 U.S.C.A. § 856(a)(1) (West 1999 & Supp.
2001). Martin challenges the district court’s decision to sentence him
as a career offender based upon this offense pursuant to U.S. Sentenc-
ing Guidelines Manual § 4B1.1(c) (2000).1 At the plea hearing, the
district court abbreviated its description of the offense to one of main-
taining a place for the "use of drugs" and "using marijuana" when it
asked Martin how he pleaded to the offense. Martin argues that his
assent to plead guilty to the offense articulated by the court thus either
constitutes a plea for simple possession that cannot be used as a predi-
cate for career offender sentencing, see United States v. Neal, 27 F.3d
90, 92 (4th Cir. 1994), or presents ambiguous sentencing alternatives
as proscribed in United States v. Baker, 16 F.3d 854, 857-58 (8th Cir.
1994).
Because Martin advances these arguments initially on appeal, we
review for plain error. United States v. Olano, 507 U.S. 725, 731-32
(1993).
Martin’s indictment describes his offense as including the manu-
facture, distribution, and use of marijuana (JA 15, 20). Moreover,
Martin acknowledged during his Rule 11 colloquy that he had
received a copy of the indictment and thoroughly discussed its con-
tents with his attorney. He also declined the court’s invitation to fur-
ther discuss his charges with his lawyer. (JA 31-32).2
1
In order for USSG § 4B1.1 career offense status to apply, (1) a defen-
dant must be at least eighteen at the time he committed the offense of
conviction, (2) the offense of conviction must be a felony that is a crime
of violence or a controlled substance offense, and (3) the defendant must
have at least two prior felony convictions for either a crime of violence
or a controlled substance offense. Martin was 46 years old at the time of
sentencing and had two state felony drug trafficking convictions.
2
Martin’s plea agreement stated the charge to which he was pleading
guilty as "maintaining a place for the purpose of manufacturing, distrib-
UNITED STATES v. MARTIN 3
Most significantly, the district court described his offense as main-
taining his dwelling for the purpose of "using and distributing mari-
juana," which fully apprized Martin of the elements of charge for
which he was to plead. (JA 32) (emphasis added). Moreover, despite
Martin’s lack of education, the Rule 11 hearing and his attorney’s rep-
resentation insured that he was fully cognizant of the offense to which
he pleaded.
Accordingly, we find that any error committed by the district court
in abbreviating its reference to the charge against Martin was neither
plain nor affected substantial rights. Id. at 734-35. We therefore
affirm the district court’s finding that Martin is a career offender. We
conclude that this holding obviates the need to address the propriety
of the district court’s relevant conduct determinations, as Martin’s
career offender status dictates his base offense level under § 4B1.1(c).
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
uting, and using marijuana," in violation of 21 U.S.C. § 856(a)(1). (J.A.
at 16, 20 (emphasis added)). The plea agreement further described the
elements of the charge disjunctively, as maintaining a residence "for the
purpose of either manufacturing, distributing or using marijuana." (J.A.
at 20 (emphasis added)). The indictment, however, was worded in the
conjunctive, and we conclude that Martin’s consultations with his attor-
ney, the indictment, and the Rule 11 hearing served to unambiguously
inform him that he was pleading guilty to manufacturing, distributing,
and using marijuana at his residence, not simply the use of it. See United
States v. Montgomery, 262 F.3d 233, 242 (4th Cir. 2001) (noting that
where a statute provides disjunctive means of establishing an element,
the Government must charge in the conjunctive).