UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4680
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAM WESTRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (CR-04-267)
Submitted: May 31, 2006 Decided: June 22, 2006
Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Robert J. Wagner,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Michael Steven Dry, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sam Westry was convicted, following a bench trial, of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2000). At trial, Westry's motions for judgment
of acquittal under Fed. R. Crim. P. 29 were denied. The district
court sentenced Westry to 180 months' imprisonment, and Westry
timely appealed.
Westry's appellate counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), raising
one issue: whether the Rule 29 motion was properly denied. Westry
filed a pro se supplemental brief in which he alleges the following
points of error: (1) the court failed to make an explicit finding
at the sentencing hearing that he is an armed career criminal; (2)
whether prior convictions may be used to enhance his sentence under
Almendarez-Torres v. United States, 523 U.S. 224 (1998); and (3)
that he did not have notice before his sentencing hearing that he
would be sentenced as an armed career criminal. The Government
declined to file a brief.
In a bench trial, “the judge weighs the evidence,
determines the credibility of the witnesses, and finds the facts
. . . [and] may select among conflicting inferences to be drawn
from the testimony.” United States v. Bales, 813 F.2d 1289, 1293
(4th Cir. 1987). The denial of a Rule 29 motion is reviewed de
novo. United States v. Lentz, 383 F.3d 191, 199 (4th Cir. 2004),
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cert. denied, 125 S. Ct. 1828 (2005). Westry stipulated that the
firearm at issue had traveled in interstate commerce and that he
had previously been convicted of a felony. As to the only
remaining element of the offense, possession of the firearm, Westry
himself testified that he removed the firearm from someone else’s
truck and put it in his own truck, where it was found when Westry
was stopped by police officers. Viewing the evidence in the light
most favorable to the Government, we find substantial evidence
supports the verdict. Glasser v. United States, 315 U.S. 60, 80
(1942). Accordingly, the district court properly denied Westry's
Rule 29 motions.
The claims raised in Westry’s pro se supplemental brief
are likewise meritless. First, the district court adopted the
presentence report, to which no objection was lodged,* and that
report recommended sentencing Westry as an armed career criminal
under U.S. Sentencing Guidelines Manual § 4B1.4. Thus, it is clear
that the district court found the armed career criminal enhancement
applied. Second, the Government need not allege in the indictment
or prove beyond a reasonable doubt the prior convictions upon which
a sentence is enhanced. United States v. Cheek, 415 F.3d 349, 352-
*
To the extent Westry contends his counsel was ineffective for
failing to object to the prior convictions that were used to
enhance his sentence, such a claim is not properly before us on
direct appeal, but may instead be pursued in a motion pursuant to
28 U.S.C. § 2255 (2000). See United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999).
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53 (4th Cir. 2005). Finally, Westry was not entitled to notice
prior to the enhancement of his sentence as an armed career
criminal. See United States v. Foster, 68 F.3d 86, 89 (4th Cir.
1995).
We have independently reviewed the entire record in this
case in accordance with Anders and have found no meritorious issues
for appeal. We therefore affirm Westry'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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