UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES ANDRE MATTISON, a/k/a Dre,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-02-1358)
Submitted: November 30, 2006 Decided: January 3, 2007
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Regan
Alexandra Pendleton, Assistant United States Attorney, Greenville,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Andre Mattison appeals his convictions and
420-month sentence for conspiracy to possess with intent to
distribute crack cocaine and distribution of crack cocaine.
Counsel has filed an Anders v. California, 386 U.S. 738 (1967),
brief and Mattison has not filed a supplemental brief. The
Government elected not to file a reply brief. Counsel raises the
issue of whether the district court erred in denying Mattison’s
Fed. R. Crim. P. 29 motion for judgment of acquittal, arguing that
there was insufficient evidence to support the convictions. He
also raises the issue of whether Mattison’s sentence violates the
Sixth Amendment or is in error because the Sentencing Guidelines
were applied in a mandatory fashion. We affirm.
This court reviews the denial of a Rule 29 motion de
novo. United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005).
Where, as here, the motion was based on a claim of insufficient
evidence, “[t]he verdict of a jury must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S. 60,
80 (1942). This court “ha[s] defined ‘substantial evidence’ as
‘evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt
beyond a reasonable doubt.’” Alerre, 430 F.3d at 693 (quoting
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)). The
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court “must consider circumstantial as well as direct evidence, and
allow the government the benefit of all reasonable inferences from
the facts proven to those sought to be established.” United
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). We “may
not weigh the evidence or review the credibility of the witnesses.”
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). We
have reviewed the record and find that there was sufficient
evidence to support the convictions. We therefore find no error in
the district court’s denial of Mattison’s Rule 29 motion.
Mattison’s Anders brief also raises the issues of whether
his sentence violates the Sixth Amendment because he received an
increased adjusted offense level based on drug quantity and leader
or organizer status and whether the district court erred in
applying the Sentencing Guidelines as mandatory. Because Mattison
preserved this issue by objecting to the presentence report on
Blakely v. Washington, 542 U.S. 246 (2004), grounds, this court
reviews for harmless error. United States v. Rodriguez, 433 F.3d
411, 415 (4th Cir. 2006). Under the harmless error standard, this
court “must reverse unless [it] find[s] this constitutional error
harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.” United States v. Mackins, 315
F.3d 399, 405 (4th Cir. 2003) (citations omitted); see United
States v. White, 405 F.3d 208, 223 (4th Cir.) (discussing
difference in burden of proving that error affected substantial
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rights under harmless error standard in Fed. R. App. P. 52(a), and
plain error standard in Fed. R. App. P. 52(b)), cert. denied, 126
S. Ct. 668 (2005).
Here, while the district court’s application of the
Sentencing Guidelines as a mandatory determinant in sentencing was
error, the district court clearly announced that it would impose a
higher sentence if the guidelines did not apply. See White, 405
F.3d at 216-17, 224. Given the increased alternative discretionary
sentence, the Government can show that the error in treating the
guidelines as mandatory did not affect Mattison’s substantial
rights. See id. at 223 (noting that substantial rights inquiry is
the same under plain or harmless error and that only difference is
who bears burden of proof); see also United States v. Revels, 455
F.3d 448, 452 (4th Cir. 2006) (holding a Sixth Amendment error
harmless because the district court announced an identical
alternate sentence after considering the guidelines as advisory
only and thus the error did not affect the outcome of the
proceeding). In addition, even had Mattison’s sentencing
objections been granted, they would have no effect on his sentence
because of his career offender status. Thus, any United States v.
Booker, 543 U.S. 220 (2005), error by the district court in
imposing Mattison’s sentence was harmless. We therefore affirm
Mattison’s sentence.
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We deny Mattison’s motion to remand for resentencing and
grant the Government’s motion to dismiss the motion to remand. In
accordance with Anders, we have reviewed the record in this case
and have found no meritorious issues for appeal. We therefore
affirm Mattison’s convictions and sentence. This court requires
that counsel inform Mattison, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Mattison 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 Mattison. 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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