UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4692
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRELL SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver,
Jr., District Judge. (2:12-cr-00035-1)
Submitted: March 28, 2013 Decided: April 9, 2013
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Monica D. Coleman, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darrell Spencer appeals his 120-month below-Guidelines
sentence imposed after he pled guilty to aiding and abetting the
distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006), and 18 U.S.C. § 2 (2006). On appeal,
counsel for Spencer filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal but questioning whether the
district court properly applied the career offender enhancement
in the Sentencing Guidelines. Spencer has not filed a
supplemental pro se brief, despite notice of his right to do so.
We affirm.
“A defendant is a career offender if (1) [he] was at
least eighteen years old at the time [he] committed the instant
offense . . . ; (2) the instant offense . . . is a felony that
is . . . a controlled substance offense; and (3) [he] has at
least two prior felony convictions of . . . a controlled
substance offense.” U.S. Sentencing Guidelines Manual
§ 4B1.1(a) (2011). “Any prior sentence of imprisonment
exceeding one year and one month that was imposed within fifteen
years of the defendant’s commencement of the instant offense
[and that] . . . , whenever imposed, . . . resulted in the
defendant being incarcerated during any part of such fifteen-
year period [is counted].” Id. § 4A1.2(e); see id. § 4B1.2
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cmt. n.3 (counting provisions of § 4A1.2 are applicable to
counting of convictions under § 4B1.1).
Spencer was convicted of distribution of cocaine base
in 1990 and was sentenced to sixty months in prison. He was
placed on supervised release in 1994. His supervised release
was revoked in January 1996, and Spencer returned to prison
until October 1997. In 2002, Spencer was convicted of
conspiracy to distribute cocaine and sentenced to fifteen years
in prison with ten years suspended. Spencer remained
incarcerated until June 2007. The drug sale on which Spencer’s
instant conviction is based occurred on August 18, 2011. Both
of Spencer’s prior drug felonies resulted in his incarceration
during the fifteen years prior to the instant offense and,
accordingly, application of the career offender enhancement was
proper. Our review of the record leads us to conclude that
Spencer’s below-Guideline sentence was neither procedurally nor
substantively unreasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Spencer, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Spencer requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
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counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Spencer.
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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