UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN DEWAYNE BARR,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-00515-TLW-1)
Submitted: June 29, 2011 Decided: July 12, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON, TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. Carrie Ann Fisher, Assistant United
States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Dewayne Barr pleaded guilty, pursuant to a plea
agreement, to one count of felon-in-possession of ammunition in
violation of 18 U.S.C. § 922(g) (2006) and one count of
possession with intent to distribute a quantity of cocaine base
in violation of 21 U.S.C. § 841(a)(1) (2006). On appeal after
resentencing, Barr’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states that he
finds no meritorious issues for appeal. Counsel questions (1)
whether this court has jurisdiction over this appeal because no
notice of appeal was filed after resentencing on remand, and (2)
whether the district court erred in designating Barr a career
offender. Barr, in a supplemental filing, calls for the
retroactive application of the Fair Sentencing Act of 2010 to
his sentencing.
Our review leads us to conclude that we do, in fact,
have jurisdiction over this appeal. In our limited remand for
resentencing, we specifically retained jurisdiction over the
appeal. Thus, no new notice of appeal was required to be filed
after the resentencing.
Because Barr failed to object to the career offender
designation in the district court, we review the imposition of
that designation for plain error. United States v. Branch, 537
F.3d 328, 343 (4th Cir. 2008). We find no such error. Barr’s
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two predicate offenses, strong arm robbery and distribution of
cocaine base, were separated by an intervening arrest.
Therefore, despite Barr being sentenced on the same day for both
offenses, the two offenses are counted separately. U.S.
Sentencing Guidelines Manual § 4A1.2 (2008). Contrary to Barr’s
assertions, South Carolina’s common law offense of strong arm
robbery does qualify as a “crime of violence” for purposes of
the Guidelines. See USSG § 4B1.2(a). Despite the relatively
light penalty actually served by Barr, the convictions count as
“prior felony convictions” because the offenses are punishable
by terms of imprisonment exceeding one year. See USSG § 4B1.2
cmt. n.1. Thus, the district court properly counted both
offenses as separate predicate offenses for purposes of
designating Barr a career offender under USSG § 4B1.1.
Barr also seeks retroactive application of the
provisions of the Fair Sentencing Act of 2010, Pub. L. No. 111-
220. We recently foreclosed this argument for offenders, like
Barr, who were sentenced before its effective date. United
States v. Bullard, F.3d , No. 09-5214, 2011 WL 1718894,
at *10 (4th Cir. May 6, 2011) (“We agree with all eight circuits
that have ruled on the issue that the FSA contains no express
statement of retroactivity, nor can any such intent by inferred
from its language.”). Thus, this ground lends Barr no aid.
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In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Barr’s convictions and sentence.
This court requires that counsel inform Barr, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Barr 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 Barr.
Barr’s pending motions to file pro se supplemental
briefs are denied as moot. His motion to seal is also denied
and his motion to withdraw is hereby struck. 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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