United States v. Thompson

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v.  No. 03-4081 LARRY DEAN THOMPSON, a/k/a Tiger, Defendant-Appellant.  Appeal from the United States District Court for the District of South Carolina, at Spartanburg. G. Ross Anderson, Jr., District Judge. (CR-02-248) Submitted: July 24, 2003 Decided: August 1, 2003 Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. COUNSEL Thomas G. Nessler, Jr., LAW OFFICES OF THOMAS G. NESS- LER, JR., Greenville, South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY, Green- ville, South Carolina, for Appellee. 2 UNITED STATES v. THOMPSON Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: Larry Dean Thompson pled guilty to one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 846 (2000). At sentencing, Thompson was found to be a career offender pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2002), and sentenced to 188 months’ imprisonment. His counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he raises the sole issue that the district court incor- rectly sentenced Thompson, but ultimately concludes there are no meritorious issues for appeal. Thompson has filed a pro se supple- mental brief in which he asserts that his conviction should be over- turned because 21 U.S.C. § 841 is unconstitutionally vague. Finding no reversible error, we affirm. Thompson first argues that the district court erred in sentencing him to 188 months’ imprisonment. This court has held that a district court may fix a sentence at any point within the guideline range and that its decision is not appealable as long as the guideline range is cor- rectly calculated. United States v. Porter, 909 F.2d 789, 794 (4th Cir. 1990). A review of the record indicates that the district court sen- tenced Thompson at the low end of a correctly calculated guidelines range, and that his sentence is below the statutory maximum penalty; therefore, this court lacks authority to review it. Next, Thompson contends that his conviction should be overturned because 21 U.S.C. § 841 is unconstitutionally vague. We have repeat- edly, however, found that § 841 is constitutional. See United States v. Chong, 285 F.3d 343, 346-47 (4th Cir. 2002); United States v. MacAl- lister, 272 F.3d 228, 232-33 (4th Cir. 2001); United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997). In accordance with the requirements of Anders, we have considered the entire record on appeal and find that there are no meritorious UNITED STATES v. THOMPSON 3 issues for appeal. Accordingly, we affirm Thompson’s conviction and sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for fur- ther 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. Coun- sel’s motion must state that a copy thereof was served on the client. 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