UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM DAVID WILSON, a/k/a Pudgie,
Defendant - Appellant.
No. 13-4306
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM DAVID WILSON, a/k/a Pudgie,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (3:94-cr-00065-BO-12)
Submitted: December 12, 2013 Decided: December 18, 2013
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, William David Wilson
appeals the amended judgment of conviction entered after
resentencing, and the order denying his motion to correct the
sentence. Wilson’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious issues for appeal but adopting Wilson’s
arguments that he raises in his pro se supplemental brief. The
Government did not file a brief. We affirm.
After granting Wilson’s 28 U.S.C. § 2255 (2012) motion
and ordering resentencing based on a favorable adjustment to
Wilson’s criminal history category, the district court sentenced
Wilson to 210 months’ imprisonment for his conviction for
conspiracy to possess with intent to distribute in excess of
twenty-five kilograms of crack cocaine and a consecutive 60
month sentence for his conviction for using and carrying a
firearm during and in relation to a drug trafficking crime.
Wilson was also resentenced to five years’ supervised release
for the drug conspiracy conviction and three years’ supervised
release for the firearm conviction, to run concurrently. The
resulting sentence was ninety months lower than the original
sentence and below the recalculated Guidelines sentence.
Wilson contends that his sentence is unlawful because
it is based upon a drug quantity not found by the jury beyond a
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reasonable doubt. Wilson claims that at trial the jury was not
asked to determine the amount of crack cocaine that was
reasonably foreseeable to him as part of the drug conspiracy.
He further claims that he was susceptible to sentencing under 21
U.S.C. § 841(b)(1)(A) (2012), with a ten year minimum sentence
and a maximum sentence of life. He contends he should have been
sentenced pursuant to § 841(b)(1)(C), with a maximum sentence of
twenty years’ imprisonment.
Wilson did not raise these issues at sentencing or at
resentencing. Thus, review is for plain error. See Fed. R.
Crim. P. 52(b); Olano v. United States, 507 U.S. 725, 731-32
(1993); United States v. Mackins, 315 F.3d 399, 405-06 (4th Cir.
2003). Wilson must show that an error occurred, that the error
was plain, and that the error affected his substantial rights.
Even if Wilson were to satisfy these requirements, we will not
exercise our discretion to address the errors unless the errors
substantially affect the fairness, integrity or public
reputation of the proceedings. Olano, 507 U.S. at 732.
Because Wilson’s sentence of 210 months’ imprisonment
for the drug conspiracy is below the statutory maximum sentence
of twenty years authorized by 21 U.S.C. § 841(b)(1)(C) there is
no error. United States v. Angle, 254 F.3d 514, 518 (4th Cir.
2001).
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Wilson also contends that the district court erred
finding that he was responsible for 11.7 kilograms of crack
cocaine. However, as the district court noted, this issue was
resolved when Wilson filed his 18 U.S.C. § 3582(c) (2012) motion
seeking a sentence reduction based on amendments to the
Sentencing Guidelines. The court found that at sentencing
Wilson was held responsible for 11.7 kilograms of crack cocaine
and was not eligible for a reduction to the Guidelines sentence.
This court affirmed. United States v. Wilson, No. 09-8087, 2010
WL 1784732, *1 (4th Cir. May 5, 2010) (unpublished). Because
the issue was previously decided by the district court and
affirmed by this court, the finding that Wilson was responsible
for 11.7 kilograms of crack cocaine is the law of the case.
Therefore, the finding governs the same issue in subsequent
stages of the same case. United States v. Aramony, 166 F.3d
655, 661 (4th Cir. 1999). Accordingly, the district court did
not err in not considering arguments that Wilson was responsible
for a lesser quantity of crack cocaine.
Wilson also contends that the indictment was
constructively amended based on the allegation that the jury was
instructed that it should find whether or not Wilson violated
the law with respect to possession of cocaine instead of cocaine
base. Because Wilson did not raise this issue on direct appeal,
when his convictions were affirmed, or at resentencing,
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consideration of this issue at this juncture of the proceedings
is foreclosed. United States v. Bell, 5 F.3d 64, 66-67 (4th
Cir. 1993).
Wilson also argues that under Apprendi v. New Jersey,
530 U.S. 466 (2000), he should have only received three years of
supervised release instead of five for the drug conspiracy
conviction. Under 21 U.S.C. § 841(b)(1)(A), a defendant may
receive “at least 5 years” of supervised release. Under
§ 841(b)(1)(C), the default sentencing provision if there is no
drug quantity found by the jury, a defendant may receive “at
least 3 years” of supervised release. Wilson argues that
because he should have been sentenced under § 841(b)(1)(C), he
should only receive three years of supervised release instead of
five. Wilson did not raise this issue at sentencing either and
review is for plain error.
After considering this claim in light of the Supreme
Court’s opinion in Alleyne v. United States, 133 S. Ct. 2151
(2013) (holding that any fact that increases the statutory
mandatory minimum is an element of the offense and must be
submitted to jury and found beyond a reasonable doubt), we
conclude that while there may be plain error that affected
Wilson’s substantial rights, we decline to notice the error
because it did not affect the fairness, integrity or public
reputation of the proceedings. Olano, 507 U.S. at 732. We note
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that the overwhelming evidence supports the finding that it was
reasonably foreseeable to Wilson that it was within the scope of
the conspiracy agreement to distribute at least 280 grams of
crack cocaine. See United States v. Cotton, 535 U.S. 625, 632-
33 (2002). We further note that the five year period of
supervised release was not greater than permitted by
§ 841(b)(1)(C). See United States v. Pratt, 239 F.3d 640, 647-
48 (4th Cir. 2001).
The district court’s 210 month sentence is reviewed
for reasonableness pursuant to an abuse of discretion standard.
United States v. Diosdado-Star, 630 F.3d 359, 365 (4th Cir.
2011); see also Gall v. United States, 552 U.S. 38, 51 (2007);
Rita v. United States, 551 U.S. 338, 350 (2007). This review
requires consideration of both the procedural and substantive
reasonableness of the sentence. Id.; see United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010). We must first decide whether
the district court correctly calculated the defendant’s advisory
Guidelines range, considered the § 3553(a) factors, analyzed the
arguments presented by the parties, and sufficiently explained
the selected sentence. Id. at 575-76; see United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009).
We have reviewed the resentencing and find no
procedural or substantive error. Accordingly, we affirm the
sentence.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the amended judgment of conviction and the
order denying the motion to correct the sentence. This court
requires that counsel inform Wilson, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Wilson 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 Wilson. We deny Wilson’s motion to proceed pro
se. Because we permit a pro se litigant to file a pro se
supplemental brief in a case under Anders, we deny as moot
Wilson’s motion to file a pro se brief. We also deny his motion
to strike counsel’s Anders brief. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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