UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5045
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRANDON RIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-04-85)
Submitted: November 30, 2006 Decided: January 25, 2007
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. George E. B. Holding, Acting United
States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Rivers appeals his jury convictions and resulting
sentence for conspiracy to distribute and possess with the intent
to distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 846 and aiding and abetting each other in distributing
a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
Rivers asserts that (1) the trial court erred in refusing his
guilty plea; (2) the trial court erred in denying his Rule 29
motion for judgment of acquittal; (3) his career offender
enhancement was unconstitutional; and (4) his sentence was
unreasonable. We affirm.
Rivers contends that the district court erred in refusing
to accept his plea, despite his refusal to admit that he committed
the offense knowingly. Rivers did not object to the court’s
refusal to accept his guilty plea, so we review for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993). A defendant
has no constitutional right to plead guilty, or to require the
court to accept a plea pursuant to North Carolina v. Alford, 400
U.S. 25 (1969). Santobello v. New York, 404 U.S. 257, 262 (1971);
Alford, 400 U.S. at 38 n.11. Rivers’ plea agreement did not
provide for an Alford plea. Moreover, Rivers never requested or
indicated that he wanted to enter an Alford plea. Thus, we find no
error in the court’s refusal to accept Rivers’ plea.
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This court reviews the district court’s decision to deny
a Rule 29 motion de novo. United States v. Smith, 451 F.3d 209,
216 (4th Cir.), cert. denied, 127 S. Ct. 197 (2006). 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);
Smith, 451 F.3d at 216. This court has “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.’” Smith, 451 F.3d at
216 (quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc)). This 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). This court “may not weigh the evidence or review the
credibility of the witnesses.” United States v. Wilson, 118 F.3d
228, 234 (4th Cir. 1997). If evidence “supports different,
reasonable interpretations, the jury decides which interpretation
to believe.” United States v. Murphy, 35 F.3d 143, 148 (4th Cir.
1994).
We find that Rivers’ argument on appeal amounts to
nothing more than his belief that the government witnesses were not
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credible because they were cooperating witnesses testifying
pursuant to plea agreements. Witness credibility, however, is
solely within the province of the jury and will not be reassessed
on appeal. See United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989). As such, we find no error in the court’s denial of
Rivers’ Rule 29 motion.
We further find Rivers’ contention that his career
offender enhancement is unconstitutional under United States v.
Booker, 543 U.S. 220 (2005), is foreclosed by our decision in
United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005), in
which we held that, where the facts are undisputed, the application
of the career offender enhancement falls within the exception for
prior convictions. Accord United States v. Guevara, 408 F.3d 252,
261 (5th Cir. 2005) (“Career offender status is not ‘a sentencing
judge’s determination of a fact other than a prior conviction.’
. . . Booker explicitly excepts from Sixth Amendment analysis the
third component of the crime of violence determination, the fact of
two prior convictions.”), cert. denied, 126 S. Ct. 1080 (2006); see
also United States v. Harp, 406 F.3d 242, 247 (4th Cir.) (finding
no plain error in the district court’s designation of Harp as a
career offender), cert. denied, 126 S. Ct. 297 (2005).
Finally, we will affirm a post-Booker sentence if it is
both reasonable and within the statutorily prescribed range.
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). A
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sentence within a properly calculated advisory guideline range is
presumptively reasonable. United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). This
presumption can only be rebutted by a showing that the sentence is
unreasonable when measured against the factors under 18 U.S.C.
§ 3553(a) (2000). United States v. Montes-Pineda, 445 F.3d 375,
379 (4th Cir. 2006), pet. for cert. filed, __ U.S.L.W. __ (July 21,
2006) (No. 06-5439). Procedurally, a district court must:
(1) properly calculate the sentencing range; (2) determine whether
a sentence within the range adequately serves the § 3553(a)
factors; (3) implement mandatory statutory limitations; and
(4) explain its reasons for selecting the sentence, especially a
sentence outside the range. Green, 436 F.3d at 455-56. We find
the record reflects that the district court here adequately and
properly considered all of the sentencing factors. We therefore
find Rivers’ sentence was reasonable.
Accordingly, we affirm Rivers’ convictions and sentence.
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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