UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4503
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS WAYNE FITZGERALD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (CR-02-09)
Submitted: October 17, 2003 Decided: October 28, 2003
Before WIDENER, WILKINSON, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory John Ramage, Raleigh, North Carolina, for Appellant. Angela
Hewlett Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Wayne Fitzgerald pled guilty to escaping from the
Salvation Army Community Corrections Center, in violation of 18
U.S.C. § 751(a) (2000). The presentence investigation report
(“PSR”) recommended that Fitzgerald be sentenced as a career
offender based on the instant offense, his prior felony conviction
for selling cocaine, and his two prior felony convictions for
escape. The district court adopted the findings in the PSR and
sentenced Fitzgerald to forty-three months of imprisonment, to be
followed by a three-year term of supervised release.
Fitzgerald’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious grounds for appeal but raising two issues: (1) whether
the district court erred in finding Fitzgerald to be a career
offender under U.S. Sentencing Guidelines Manual § 4B1.1 (2001), by
determining that the instant offense of escape and Fitzgerald’s
prior escape convictions constituted crimes of violence; and (2)
whether Fitzgerald received ineffective assistance of counsel
because counsel failed to move for a downward departure based on an
overstated criminal history. Fitzgerald was advised of his right
to file a pro se supplemental brief but has declined to do so.
We have reviewed the record and conclude that the district
court properly sentenced Fitzgerald as a career offender. See
United States v. Dickerson, 77 F.3d 774 (4th Cir. 1996).
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Furthermore, Fitzgerald’s claim of ineffective assistance of
counsel should be brought, if at all, in a proceeding under 28
U.S.C. § 2255 (2000), because the record in this appeal does not
conclusively establish ineffective assistance of counsel. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
In accordance with the requirements of Anders, we have
reviewed the entire record in this case and have found no
meritorious issues for appeal. Accordingly, we affirm Fitzgerald’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 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.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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