UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4212
TODD FEURTADO, a/k/a Todd
Edwards,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Solomon Blatt, Jr., Senior District Judge.
(CR-95-669)
Submitted: February 17, 1998
Decided: April 13, 1998
Before WIDENER and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas C. Manning, MANNING & CROUCH, Raleigh, North Caro-
lina, for Appellant. J. Rene Josey, United States Attorney, Cameron
G. Chandler, Assistant United States Attorney, Columbia, South Car-
olina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Todd Feurtado pleaded guilty to conspiracy to distribute and pos-
sess with intent to distribute cocaine and cocaine base in violation of
21 U.S.C. § 846 (1994), and was sentenced to ninety-five months'
imprisonment. On appeal, Feurtado contends that the district court:
(1) lost jurisdiction to sentence him in accordance with the plea agree-
ment after the court dismissed the indictment; (2) improperly
amended a previous order; and (3) attributed to him an improper
quantity of cocaine during sentencing. Feurtado's attorney has filed
a brief in accordance with Anders v. California , 386 U.S. 738 (1967),
asserting that there are no meritorious issues for appeal. Feurtado did
not file a pro se supplemental brief. We affirm.
Feurtado and several others were indicted for conspiring in the dis-
tribution of cocaine in Virginia, South Carolina, New York, and other
states. On February 9, 1996, Feurtado's counsel filed a motion adopt-
ing all of Feurtado's co-defendants' motions, which included a
motion to dismiss the indictment due to alleged grand jury irregulari-
ties. Feurtado pleaded guilty to the conspiracy charge in accordance
with a plea agreement on February 23, 1996. On March 27, 1996, the
court orally dismissed the indictment without prejudice on the motion
of some co-defendants but Todd Feurtado was not listed among them.
Neither Feurtado nor his counsel was present at this hearing. The
court signed an order on June 10, 1996, to this effect, placing a hand-
written notation on the last page which reads: "Nunc pro tunc to
March 27, 1996." This order was entered on June 12, 1996 (J.A. at
68-83), along with a document entitled "order" entered by the clerk's
office at the judge's direction. This "order" specifically states: "Please
note, per a telephone conversation with Judge Blatt on this date, that
this dismissal is only as to those defendants that have not already pled
guilty. Consequently, this action is still pending as to . . . Todd
Feurtado . . . ." (J.A. at 67). A new indictment was returned on April
2
3, 1996, naming those defendants who had not pleaded guilty.
Feurtado was not named. He was sentenced in March 1997.
A presentence report was filed for Feurtado which attributed
between 3.5 and 5 kilograms of cocaine to him. Feurtado filed no
objections to the drug amounts stated in the presentence report. In
accordance with the plea agreement, the court sentenced Feurtado to
ninety-five months' imprisonment.
We first address Feurtado's contention that the court was divested
of jurisdiction to sentence him as a result of the order signed on June
10, 1996. We find to the contrary because the order makes clear that
it is not addressing any motion filed by Todd Feurtado. The first sen-
tence of the order states that the "matter comes before the court on
motion of" certain named defendants and Todd Feurtado is not listed
among them. This makes sense because he had already entered a
guilty plea to his indictment. We perceive no need to address whether
by pleading guilty Feurtado waived any claim related to the grand
jury proceedings.
In a similar vein, Feurtado next claims that the court lost jurisdic-
tion to sentence him based on the guilty plea because in its first writ-
ten order the judge dismissed the indictment against him, and that the
subsequent order, which specifically excludes Feurtado and the others
who pleaded guilty from the order's effect, altered Feurtado's sub-
stantial rights. Because we have found that the order signed June 10,
1996, did not affect Feurtado, this claim is simply unavailing.
Lastly, Feurtado alleges that the court attributed an improper quan-
tity of drugs to him during sentencing. The court sentenced Feurtado
to ninety-five months' imprisonment based upon a stipulated drug
amount of 3.5 to 5 kilograms of cocaine powder as stated in the plea
agreement and presentence report. Because Feurtado failed to object
to this quantity at anytime, we may only review this alleged error if
it was a plain error that affected his substantial rights. See Fed. R.
Crim. P. 52(b); see also United States v. Olano , 507 U.S. 725, 731-32
(1993). Feurtado's only argument is that because a co-defendant's
presentence report attributes a lesser quantity of drugs to Feurtado, his
sentence should have been based on that amount. Because the amount
3
attributed to Feurtado in another's presentence report may not be
accurate and is not relevant, we find no plain error.
In accordance with Anders, we have examined the entire record in
this case and find no reversible error. We therefore affirm Feurtado's
conviction and sentence. This court requires that counsel inform his
client in writing of his right to petition the Supreme Court of the
United States for further review. If the client 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 repre-
sentation. Counsel's motion must state that a copy thereof was served
on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court, and
oral argument would not aid the decisional process.
AFFIRMED
4