United States v. Elliott

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4566

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES GREGORY ELLIOTT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-03-15-REM)

Submitted: December 15, 2005 Decided: December 20, 2005

Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Stephen Donald Warner, OFFICE OF THE
UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

James Gregory Elliott appeals his conviction and

240-month sentence imposed after he pled guilty to operating a

crack house, in violation of 21 U.S.C. § 856(a) (2000). Elliott’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), raising several issues but stating that, in his view,

there are no meritorious issues for appeal. Elliott was informed

of his right to file a pro se supplemental brief but has not done

so. We affirm.

Counsel questions the district court’s compliance with

Fed. R. Crim. P. 11, in accepting Elliott’s guilty plea. Because

Elliott did not move in the district court to withdraw his guilty

plea, any error in the Rule 11 hearing is reviewed for plain error.

United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our

review of the plea colloquy leads us to conclude that the district

court fully complied with the mandates of Rule 11 in accepting

Elliott’s guilty plea. Thus, there is no error, plain or

otherwise.

Next, counsel questions whether the district court erred

in determining the amount of drugs attributable to Elliott, in

concluding that Elliott possessed a firearm during the commission

of the offense, and in declining to award a downward adjustment for

acceptance of responsibility. The district court sentenced Elliott

after the Supreme Court decided United States v. Booker, 543 U.S.

- 2 -
220 (2005), and properly calculated Elliott’s total offense level

and criminal history category to establish an advisory sentencing

guideline range of 324 to 405 months of imprisonment. However, the

statutory maximum sentence applicable to Elliott’s offense of

conviction is twenty years, see 21 U.S.C. § 856(b) (2000); thus,

the twenty-year statutory maximum became the applicable guideline

range. U.S. Sentencing Guidelines Manual § 5G1.1(a) (2003). We

therefore find no error in Elliott’s sentence.

In accordance with Anders, we have reviewed the entire

record for any meritorious issues and have found

none. Accordingly, we affirm Elliott’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

- 3 -