UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4909
BENJAMIN PARKER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-01-91)
Submitted: July 31, 2002
Decided: September 24, 2002
Before WIDENER and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United States
Attorney, William K. Witherspoon, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. PARKER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Benjamin Parker appeals his conviction and his 120-month sen-
tence following his guilty plea to possession with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. § 841 (2000). His
attorney filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), stating that there were no meritorious issues for appeal, and
Parker filed a pro se supplemental brief. At our request, the Govern-
ment responded to Parker’s pro se brief, and his attorney filed a reply
brief that focused on Parker’s claim that the district court erred in sen-
tencing him to a mandatory minimum sentence of 120 months. Upon
consideration of the record and the parties’ briefs, we find that the
district court’s use of a state conviction to enhance Parker’s sentence
was plain error because the state court conviction was not final at the
time Parker committed the instant federal offense. Accordingly,
although we affirm Parker’s conviction, we vacate his sentence and
remand for re-sentencing consistent with this opinion.
As for the claims raised in counsel’s Anders brief, we find no error
in the district court’s conduct of Parker’s guilty plea hearing under
Fed. R. Crim. P. 11. We also conclude that counsel’s claim that Par-
ker’s prior guilty plea to a state felony drug charge was unknowing
and involuntary is meritless.
In his pro se brief, Parker first claims the district court failed to
conduct a proper colloquy pursuant to Fed. R. Crim. P. 11, because
it failed to inform him his conviction would result in the loss of cer-
tain federal benefits including food stamps and social security bene-
fits. Such collateral consequences have no bearing on the
determination of whether a plea is made knowingly and voluntarily.
See Brady v. United States, 397 U.S. 742 (1970); Cuthrell v. Director,
Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir. 1973). Accordingly, we
find this claim meritless.
UNITED STATES v. PARKER 3
Parker next claims that the district court erred in enhancing his sen-
tence based on his prior state court convictions for possession of
crack cocaine. The United States Code provides for a minimum ten-
year sentence for those who violate the underlying section after a pre-
vious conviction for a felony drug offense has become final. 21
U.S.C. § 841(b)(1)(B) (2000). Two days prior to the instant offense,
Parker pled guilty to two counts of possession of cocaine base in state
court, and the United States Attorney filed an information enhancing
Parker’s federal charge accordingly.
Parker attacks the use of his state court convictions on two
grounds. First, Parker reiterates his attorney’s argument that his state
convictions were not the result of a knowing and voluntary plea. Sec-
ond, he claims that the convictions were not final within the meaning
of § 841 at the time of the offense. As previously noted, we find the
first issue meritless. We agree, however, that the convictions were not
final.
Because Parker raises this issue for the first time on appeal, we
review it for plain error. United States v. Olano, 507 U.S. 725, 732
(1993). We have previously held that a conviction becomes final for
purposes of § 841 when the time for taking a direct appeal has
expired. United States v. Howard, 115 F.3d 1151, 1158 (4th Cir.
1997). Parker had ten days within which to appeal his South Carolina
convictions. See S.C. R. App. Prac. 203(b)(2). The activity forming
the basis of Parker’s federal conviction occurred only two days after
his state court convictions. As a consequence, the state court convic-
tions were not final for purposes of § 841,* and it was plain error for
the district court to apply the mandatory ten-year minimum sentence.
See United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996).
Accordingly, we affirm Parker’s conviction, but vacate his sen-
tence and remand for re-sentencing consistent with this opinion. We
*We find Appellee’s reliance on United States v. Campbell, 980 F.2d
245 (4th Cir. 1992), misplaced. The defendant in Campbell had been
adjudicated under a statute providing for deferral of disposition pending
a period of supervised probation and ultimate dismissal. Id. at 249-51.
There is no evidence that Parker’s case was considered under such a
deferral statute.
4 UNITED STATES v. PARKER
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
VACATED AND REMANDED