UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROSCOE ABELL, a/k/a Scoe, a/k/a Big Bra,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-1)
Submitted: September 23, 2010 Decided: November 10, 2010
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICES OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roscoe Abell pled guilty to one count of conspiracy to
distribute and to possess with intent to distribute fifty grams
or more of cocaine base, 500 grams or more of cocaine,
marijuana, and Ecstasy, in violation of 21 U.S.C. §§ 841(a)(1),
846 (2006), and two counts of distribution of cocaine base and
aiding and abetting, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2006), 18 U.S.C. § 2 (2006). The district court
imposed an enhanced statutory mandatory minimum sentence of 240
months’ imprisonment based on a prior felony drug conviction.
The district court also imposed a supervised release term of
fifty years.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), noting no meritorious issues
for appeal, but questioning the constitutionality of 21 U.S.C.
§ 851, whether the sentence was properly enhanced based on a
prior felony drug conviction, and the reasonableness of the
sentence imposed. In a pro se supplemental brief, Abell
likewise contests the reasonableness of his imprisonment term,
as well as the fifty-year supervised release term. Abell also
argues for retroactive application of legislation addressing
sentencing disparities for cocaine powder and cocaine base.
Finding no reversible error, we affirm. We remand, however, for
correction of a clerical error in the judgment.
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We have reviewed the record and conclude that the
district court substantially complied with the requirements of
Fed. R. Crim. P. 11 and ensured that Abell’s plea was knowing
and voluntary. We also conclude that the 240-month sentence and
fifty-year supervised release term imposed by the district court
were procedurally and substantively reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007) (review of sentence is for
abuse of discretion).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We have considered the claims asserted in counsel’s
brief and Abell’s pro se supplemental brief and conclude they
are without merit. We therefore affirm Abell’s conviction and
sentence. Although we affirm Abell’s conviction and sentence,
we remand so that the written judgment can be corrected to
reflect the distribution of cocaine base offenses in Counts
Sixteen and Seventeen to which Abell pled guilty and was
sentenced. * We grant Abell’s motion to amend his notice of
*
The written judgment incorrectly recites that Abell was
found guilty in Counts Sixteen and Seventeen of possession with
intent to distribute cocaine base. Because both possession with
intent to distribute cocaine base and distribution of cocaine
base are offenses under 21 U.S.C. § 841(a)(1), and carry the
same penalties, 21 U.S.C. § 841(b)(1), the clerical error in the
judgment did not affect Abell’s sentence or otherwise prejudice
him.
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direct appeal, but deny his “Motion to Receive Jenks and Brady
Materials,” and “Motion to Compel Discovery from Attorney.”
This court requires that counsel inform Abell, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Abell requests that a
petition be filed, but counsel believes that such filing 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 Abell. 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 AND REMANDED
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