United States v. Billings

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4598

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ANTHONY BILLINGS, a/k/a Tony,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (CR-04-27)

Submitted: May 18, 2006 Decided: May 25, 2006

Before WIDENER, WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, Morgantown,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Shawn Angus Morgan, Assistant United States Attorney,
Clarksburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Anthony Billings pled guilty to distributing crack

cocaine within 1000 feet of a playground, in violation 21 U.S.C.

§ 841(a)(1) (2000), and was sentenced after the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), to 360

months imprisonment. Counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), asserting that there are

no meritorious grounds for appeal, but raising the issues of

whether the district court plainly erred in denying as moot

Billings’ motion to withdraw his guilty plea and whether the court

plainly erred in determining Billings’ relevant conduct. Billings

has also filed a pro se supplemental brief challenging the district

court’s determination of his relevant conduct.

We find that Billings’ guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Fed. R.

Crim. P. 11. The record discloses that Billings was properly

advised of his rights, the offense charged, the maximum sentence

for the offense, and the mandatory minimum sentences applicable.

The court also determined that there was an independent factual

basis for the plea and that the plea was not coerced or influenced

by any promises. See North Carolina v. Alford, 400 U.S. 25, 31

(1970); United States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir.

1991). Although Billings initially moved to withdraw his guilty

plea, he later withdrew the motion after informing the court that

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he merely wished to withdraw his stipulation as to drug quantity,

and was allowed to do so. Accordingly, we find no plain error in

the district court’s acceptance of Billings’ guilty plea.

At sentencing, the district court concluded that Billings

was responsible for a total of 239.7 grams of crack cocaine, based

on the testimony of several witnesses. This resulted in a base

offense level of 38 under U.S. Sentencing Guidelines Manual § 2D1.1

(2004). The court also increased Billings’ offense level by two

levels for possession of a firearm, USSG § 2D1.1(b)(1), and by one

level because the offense occurred near a protected location, USSG

§ 2D1.2(a)(2).

This court reviews the district court’s factual findings

in support of sentencing enhancements for clear error. See United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002); United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). Further,

this court gives due regard to the district court’s opportunity to

judge the credibility of witnesses and does not ordinarily review

credibility determinations. United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989). Applying this standard, we find the

district court did not err in determining the drug quantity

attributable to Billings for sentencing purposes. Further, because

the court recognized the guidelines to be advisory, it properly

made findings at sentencing by a preponderance of the evidence.

See United States v. Dalton, 409 F.3d 1247, 1252 (10th Cir.

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2005)(Booker’s remedy demonstrates that judicial fact finding by a

preponderance of the evidence is unconstitutional only when it

results in a mandatory increase in the defendant’s sentence);

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,

126 S. Ct. 43 (2005) (same).

Billings’ sentence was both within the guideline range of

360 to 480 months, and within the statutory maximum of forty years

imprisonment. See 21 U.S.C. § 841(b)(1)(C) (2000). Because the

district court appropriately treated the guidelines as advisory,

and properly calculated and considered the guideline range and the

relevant § 3553(a) factors, we find the sentence reasonable. See

United States v. Green, 436 F.3d 449, 2006 WL 267217, at *5 (4th

Cir. Feb. 6, 2006) (No. 05-4270).

In accordance with Anders we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Counsel has moved to withdraw from further representation.

We deny the motion at this juncture. 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, counsel may move this court for

leave to withdraw from representation at that time. 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

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are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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