UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4807
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAKEYO NATRES BURKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:05-cr-00815-HMH)
Submitted: March 25, 2008 Decided: March 27, 2008
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael W. Chesser, Aiken, 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Unpublished opinions are not binding precedent in this circuit.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:
Nakeyo Natres Burke pled guilty pursuant to a plea
agreement to conspiracy to possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. §§ 841, 846
(2000), and was sentenced to 151 months in prison. Counsel for
Burke has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), alleging that he has found no meritorious issues for
appeal but asserting that the district court should not have
classified Burke as a career offender pursuant to U.S. Sentencing
Guidelines (“USSG”) § 4B1.1 (2005). Burke has filed a pro se
supplemental brief challenging only the reasonableness of his
sentence. The Government has declined to file a responding brief.
Finding no error, we affirm the district court’s judgment.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
review. After a Fed. R. Crim. P. 11 hearing at which Burke
admitted his guilt,* the district court adopted the findings
contained in the presentence investigation report, considered the
18 U.S.C. § 3553(a) (2000) factors, and sentenced Burke to the low
end of a properly calculated guidelines range.
*
Although it was error for the district court not to discuss
the particular portions of Burke’s plea agreement during the Rule
11 colloquy, and this error was plain, we conclude the error did
not affect Burke’s substantial rights. See United States v. Olano,
507 U.S. 725, 731-32, 734 (1993); United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005).
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We find that it was not error for the district court to
classify Burke as a career offender pursuant to USSG § 4B1.1.
Burke had two prior controlled substance offense convictions for
conduct that occurred on two separate occasions nearly one year
apart, and he was separately sentenced for those convictions nearly
six months apart. In fact, Burke’s counsel admits that the arrests
did not result from a single criminal investigation. We find that
these offenses were not part of a common scheme or plan. See USSG
§ 4B1.1(a) (2005); see also United States v. Breckenridge, 93 F.3d
132, 138-40 (4th Cir. 1996).
Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform Burke in writing of
his right to petition the Supreme Court of the United States for
further review. If Burke requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may motion this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Burke. 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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