UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4848
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARQUICE LUMONT RIVERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00012-MR-2)
Submitted: June 10, 2014 Decided: June 27, 2014
Before SHEDD, DIAZ, and THACKER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Wm. Grayson Lambert, MCGUIREWOODS, LLP, 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Unpublished opinions are not binding precedent in this circuit.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:
Marquice Lumont Rivers pled guilty to an indictment
charging that, between August 2008 and April 2009, he conspired
to possess with intent to distribute fifty grams or more of
cocaine base, in violation of 21 U.S.C. § 846 (2012). On March
1, 2012, Rivers was sentenced to 262 months’ imprisonment. On
appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal, but questioning whether the
district court erred in using Rivers’ prior convictions to
sentence him as a career offender and whether Rivers’ sentence
was reasonable. Rivers has not filed a supplemental pro se
brief, despite notice of his right to do so. While we affirm
Rivers’ conviction, we find that his sentence violates the rule
announced in Dorsey v. United States, 132 S. Ct. 2321 (2012);
accordingly, we vacate the sentence and remand for resentencing. 1
Counsel first questions the district court’s use of
Rivers’ prior convictions to apply the career offender
enhancement at sentencing. The U.S. Sentencing Guidelines
Manual (“USSG”) provides, in relevant part, that a defendant is
a career offender if he was at least eighteen years old at the
1
The district court did not have the benefit of Dorsey,
which was issued after Rivers was sentenced but prior to this
appeal.
2
time of the instant offense, the instant offense is a drug
felony or crime of violence, and the defendant has at least two
prior felony convictions for drug offenses or crimes of
violence. See USSG § 4B1.1(a) (2010). Any prior sentence of
imprisonment exceeding one year and one month is counted if that
sentence was imposed within fifteen years of the commencement of
the instant offense. USSG § 4A1.2(e); see USSG § 4B1.2 cmt. n.3
(counting provisions of § 4A1.2 are applicable to counting of
convictions under § 4B1.1). The record before this court
establishes that both of Rivers’ prior felony drug convictions
satisfy the requirements for the application of the career
offender enhancement.
At the time of sentencing, the district court believed
that Rivers faced a statutory maximum sentence of life
imprisonment. After sentencing, the Supreme Court issued
Dorsey, which held that the more lenient penalties of the Fair
Sentencing Act of 2010 (“FSA”) applied to pre-FSA offenders who
were sentenced after the FSA’s effective date. Dorsey, 132 S.
Ct. at 2331. Because Rivers was sentenced after the Act’s
effective date for conduct that occurred prior to that date, the
Act applies to him. Rivers pled guilty to conspiracy to
distribute at least fifty grams of cocaine base, and the parties
agreed at sentencing that Rivers was responsible for 55.6 grams
of cocaine base. Under the amended version of 21 U.S.C.
3
§ 841(b)(1)(B) (2012), Rivers’ statutory maximum sentence is
forty years’ imprisonment, a change which impacts the
calculation of his career offender offense level under USSG
§ 4B1.1(b). We conclude, therefore, that Rivers’ sentence must
be vacated and the case remanded to the district court for
resentencing. 2
In accordance with Anders, we have reviewed the record
for other meritorious issues and have found none. Accordingly,
we affirm Rivers’ conviction, vacate his sentence, and remand
for resentencing in accordance with the rule announced in
Dorsey. This court requires that counsel inform Rivers, in
writing, of his right to petition the Supreme Court of the
United States for further review. If Rivers 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 at that time. Counsel’s
motion must state that a copy thereof was served on Rivers. We
dispense with oral argument because the facts and legal
2
Because we are remanding for resentencing under the FSA,
we need not address Rivers’ challenge to the substantive
reasonableness of his sentence.
4
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART
AND REMANDED
5