UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4933
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGELO SHERMAN, a/k/a Zeak,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (CR-04-303; CR-97-274)
Submitted: January 27, 2006 Decided: March 1, 2006
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, LAW OFFICES OF DAVID B. BETTS, Columbia, South
Carolina, for Appellant. Jonathan Scott Gasser, Acting United
States Attorney, Columbia, South Carolina; Brent Alan Gray, OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Angelo Carnell Sherman was convicted by a jury of
unlawful possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2000) (Count One), and possession of cocaine, 21
U.S.C. § 844(a) (2000) (Count Two), and was sentenced to a term of
140 months imprisonment. Sherman appeals his conviction and
sentence. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two issues but asserting
that, in his view, there are no meritorious issues for appeal.
Sherman has been notified of his right to file a pro se
supplemental brief, but has not filed a brief. We affirm the
convictions and sentence.
Sherman first contends that the district court erred in
denying his motion for a judgment of acquittal on each of the
charges. This court reviews this decision de novo, viewing all
evidence and all reasonable inferences in favor of the government.
See Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Higgs, 353 F.3d 281, 313 (4th Cir. 2003), cert. denied,
543 U.S. 999 (2004). Numerous witnesses for the government
testified that Sherman was in a bar in North Charleston on
November 13, 2003, where he got into an altercation, knocked down
another customer, and produced a gun when an employee of the bar
approached him. Sherman was subdued and disarmed by several
employees and a customer. While he was being held on the floor,
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Sherman stated that he had a heart condition and needed his
medication. Two staff members checked Sherman’s pockets for
medication, and found small plastic baggies in his back pockets.
When a police officer arrived and took custody of Sherman, he saw
several small plastic bags on the floor where Sherman had been
lying and another protruding from his front pocket. The plastic
bags contained cocaine. After the officer took him into custody,
Sherman complained that the officer had put drugs in his pocket.
No identifiable fingerprints were found on the gun. The government
presented testimony that the firearm had been manufactured in
Austria and had traveled in interstate commerce. Sherman also
testified. He denied possessing either a firearm or cocaine and
insisted that someone must have planted the cocaine on him,
possibly the arresting officer. We conclude that the government’s
evidence amply supports Sherman’s conviction.
Sherman also contends for the first time on appeal that
the district court erred under United States v. Booker, 543 U.S.
220 (2005), in applying the sentencing guidelines as mandatory.
While the court erred in applying the guidelines as mandatory, the
court also imposed an identical alternative sentence. Sherman thus
cannot show error under the test set out in United States v. White,
405 F.3d 208, 223 (4th Cir.) (defendant who fails to object to
mandatory application of sentencing guidelines must show actual
prejudice, i.e., a nonspeculative basis for concluding that the
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district court would have imposed a lower sentence under advisory
guidelines), cert. denied, 126 S. Ct. 668 (2005).
Pursuant to the requirements of Anders, we have reviewed
the record for reversible error and found none. We therefore
affirm the 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 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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