UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4545
JEFFREY LEVERING,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Robert C. Chambers, District Judge.
(CR-98-22)
Submitted: February 16, 1999
Decided: March 12, 1999
Before ERVIN, HAMILTON, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Edward H. Weis, First
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, John L. File,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jeffrey Levering appeals his conviction and sentence for possession
of a prohibited object at a federal prison, in violation of 18 U.S.C.A.
§ 1791(a)(2) (West Supp. 1998). He was sentenced to thirty months
imprisonment consecutive to his current sentence, followed by three
years of supervised release. Levering now appeals the conviction.
Counsel for Levering has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), asserting two claims but conclud-
ing there are no meritorious grounds for appeal. Levering, informed
of his right to file a supplemental brief, has not done so.
In November 1997, Jeffrey Levering was an inmate at the Federal
Correctional Institution in Beckley, West Virginia, serving concurrent
sentences of 210 months and 60 months for bank robbery and credit
card fraud. Early that month, prison officials learned of a conflict
between inmate John Johnson, a friend of Levering's, and inmate
Thomas Hagar. Johnson, who was involved in a white supremacist
group, suspected that Hagar was falsely claiming he held a rank in
another white supremacist group, and had a tattoo from that group.
Prison officials believed Levering was involved in the conflict.
On November 7, 1997, a correctional officer searched Levering and
discovered an eight and three-quarter inch metal rod in a glasses case
in Levering's pocket. A search of Levering's cell disclosed several
racist pictures and cartoons. Levering told investigating officers that
Hagar had not earned his tattoo, that he was smarting off to Johnson,
and that Levering was carrying the shank for Johnson as "insurance."
Levering received an institutional charge for possessing a danger-
ous weapon and was sentenced to sixty days disciplinary segregation
with thirty days suspended; he lost forty-one days of "good time" and
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a year of telephone, visitation and commissary privileges. Levering
pled guilty in district court to possessing a prohibited object in federal
prison, in violation of 18 U.S.C. § 1791(a)(2).
On appeal, Levering asserts two claims: (1) his plea is invalid
because the Government failed to proffer evidence that Levering
intended to use the metal object as a weapon; and (2) the district court
violated Levering's First Amendment associational rights by consid-
ering his membership in a white supremacist group as one reason for
selecting the sentence imposed.
Levering argues that his plea is invalid under Fed. R. Crim. P. 11(f)
because the district court failed to solicit an offer of proof that the
metal rod found on Levering was designed or intended to be used as
a weapon. Any Rule 11 violation is evaluated under a harmless error
standard. United States v. Thorne, 153 F.3d 130, 132 (4th Cir. 1998);
Fed. R. Crim. P. 11(h). Under this standard, an appellate court can
vacate a conviction only if the Rule 11 violation affects substantial
rights of the defendant. United States v. DeFusco, 949 F.2d 114, 117
(4th Cir. 1991).
Rule 11(f) provides that the district court should be convinced a
factual basis supports a guilty plea. To fulfill this requirement, a trial
court needs to subjectively satisfy itself that a sufficient factual basis
exists to conclude the defendant committed all the elements of the
charged offense. United States v. Mitchell, 104 F.3d 649, 652 (4th
Cir. 1997). The trial court has wide discretion to determine whether
a sufficient factual basis exists, and will be reversed only for abuse
of discretion. Id. The court can consider anything in the record in
evaluating whether a factual basis exists. DeFusco, 949 F.2d at 120.
In this case, the elements of the offense are as follows: (1) being
an inmate of a prison; and (2) possessing a weapon or an object
designed or intended to be used as a weapon. 18 U.S.C. § 1791(a)(2),
(d)(1)(B). The Government proffered as a factual basis for the plea
that Levering was an inmate of a federal correctional institution, and
that he was searched and found with a homemade knife he admitted
possessing. Levering argues there was no proffer that the object was
designed or intended to be used as a weapon. But the district court is
entitled to consider the entire record in assessing factual basis. Lever-
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ing admitted to the court that he was in possession of a contraband
weapon, a homemade knife, which he knew was prohibited. The dis-
trict court did not abuse its discretion in considering this admission
to supply the factual basis for that element of the offense. Thus, this
claim lacks merit.
Next, Levering asserts that the district court violated his First
Amendment rights of freedom of association by improperly consider-
ing Levering's connection with a white supremacist group at sentenc-
ing. Levering did not raise this claim before the district court;
therefore, we review it for plain error. United States v. Walker, 112
F.3d 163, 165 (4th Cir. 1997).
Levering does not challenge the computation of the guideline
range, but asserts the district court was unconstitutionally motivated
to impose a sentence in the middle rather than at the low end of that
range. The district court explained its reasons for the selected sen-
tence as follows:
Mr. Levering, I must tell you that when I first read the
presentence report, my inclination was to seriously consider
giving you the maximum amount of time of incarceration
provided for under the guidelines.
Quite frankly, I think that your reason for having the
weapon is not in any sense a justification or reasonable
excuse. The fact that you had this weapon with the intention
that it be used if necessary in a confrontation occurring
between these racist supremacist groups within the prison is
not at all a mitigating factor in my judgment. And because
of the Court's concern over that type of conduct occurring
in prison and the danger that it presents to the guards and
the other prisoners, I was very much inclined to give you the
maximum amount of time that I would be permitted to.
(Emphasis added). The court went on to state that counsel for Lever-
ing had persuaded him to consider the institutional punishment Lever-
ing had already received; therefore, the court selected a sentence in
the middle range. Clearly, the district court mentioned the white
supremacist group only to reject any assertion that Levering was justi-
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fied or less culpable in his conduct because he carried the weapon for
"insurance" in a potential conflict. This is not the same as punishing
Levering for associating with a white supremacist group.
As the district court sentenced within the guideline, without any
suggestion of an unconstitutional motivation, we cannot review the
sentencing court's discretion to select a sentence within a properly
computed sentencing range. United States v. Pridgen, 64 F.3d 147,
149 (4th Cir. 1995). Therefore, this claim lacks merit.
As required by Anders, we have independently reviewed the entire
record in this case and find no reversible error. 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 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 the client.
We affirm Levering's conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and oral argument would
not aid the decisional process.
AFFIRMED
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