United States v. Berry, 4th Cir. (2005)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 05-4052
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
RAMONE BERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-134-MU)
Submitted:
November 21, 2005
Decided:
December 19, 2005
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Karen

S. Marston, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
PER CURIAM:
Ramone
Berry
appeals
his
conviction
and
120-month
sentence imposed following his guilty plea to conspiracy to possess

with intent to distribute cocaine and cocaine base.
For the
reasons discussed below, we affirm.

Berrys counsel filed a brief pursuant to Anders v.
California,
386
U.S.
738
(1967),
stating
that
there
are
no
meritorious grounds for appeal but suggesting the district court

erred in subjecting Berry to an enhanced sentence based on his
prior felony drug conviction, in light of United States v. Booker,
125 S. Ct. 738 (2005).
Although notified of his right to do so,
Berry has not filed a pro se supplemental brief.

Before turning to the argument suggested by counsel, we
note that our review of the record reveals that the district court
may have failed to comply with the requirements of 21 U.S.C.
851(b) (2000) in subjecting Berry to an enhanced sentence based
on his prior felony drug conviction.
Because Berry failed to
challenge the 851 enhancement on this ground in the district

court, we review for plain error.
See Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).

In United States v. Ellis, 326 F.3d 593 (4th Cir.), cert.
denied, 540 U.S. 907 (2003), the defendant challenged the district
courts failure to conduct a 851(b) colloquy.
The government
notified the defendant that it was seeking an enhanced sentence
- 2 -
based on prior convictions.
Id. at 596.
The presentence report
also advised the defendant of the aggravating effect of the prior

convictions.
The defendant did not object to that portion of the
presentence report and acknowledged the aggravating effect of the

prior convictions at the sentencing hearing.
Id. at 599.
We
concluded that the district courts failure to comply with the

notification
requirement
of
851(b)
was
plain
error.
Id.
Nonetheless, we held that, because the defendant apparently was on

notice of the enhancement and failed to object to it, the error did
not affect his substantial rights.
Id. (applying plain error
analysis).
Similarly, in this case, Berry received 851 notice that
adequately notified him of the prior felony drug offense upon which
the government sought to enhance his sentence.
drug
offense
was
included
in
the
presentence
The prior felony

report
in
the
discussion of Berrys criminal history, yet Berry made no objection

to the validity of this conviction.*
The presentence report also
clearly explained the impact of the prior felony drug offense on

Berrys sentence. Finally, the court made clear at sentencing that
Berry faced a statutory mandatory minimum sentence and gave Berry
an opportunity to speak before pronouncing sentence.
Even so,
Although Berry initially argued that the conviction did not

constitute a felony under North Carolina law, he later withdrew
this objection after the Supreme Court of North Carolina issued a
decision rejecting this precise argument. See State v. Jones, 598
S.E.2d 125, 127-33 (N.C. 2004).
- 3 -
Berry did not object to the use of his prior conviction to enhance
his sentence.
Because Berry could not plausibly argue that he
would have done anything different had the district court [complied
with 851(b)], id. (internal quotation marks omitted), we find
that the courts failure to comply with the 851(b) requirements
did not affect Berrys substantial rights.
In the Anders brief, counsel argues that the application
of the 851 enhancement in Berrys case may violate his Sixth
Amendment rights under Booker.
that
the
mandatory
manner
In Booker, the Supreme Court held
in
which
the
federal
sentencing
guidelines required courts to impose sentencing enhancements based

on facts found by the court, by a preponderance of the evidence,
violated the Sixth Amendment.
opinion of the Court).
violation
by
severing
125 S. Ct. at 746, 750 (Stevens, J.,
The Court remedied the constitutional

two
statutory
provisions,
18
U.S.C.A.
3553(b)(1) (West Supp. 2005) (requiring sentencing courts to

impose a sentence within the applicable guideline range), and 18
U.S.C.A.
3742(e)
(West
2000
&
Supp.
2005)
(setting
forth
appellate standards of review for guideline issues), thereby making

the guidelines advisory. Id. at 756-57 (Breyer, J., opinion of the
Court).
Berrys sentence did not violate Booker because he was
sentenced to the statutory minimum for his offense. As we recently

made clear in United States v. Robinson, 404 F.3d 850, 862 (4th
Cir.), cert. denied, 126 S. Ct. 288 (2005), Booker did nothing to
- 4 -
alter the rule that judges cannot depart below a statutorily

provided minimum sentence.
In accordance with the requirements of Anders, we have
reviewed
the
entire
record
in
meritorious issues for appeal.

conviction and sentence.
this
case
and
have
found
no
Accordingly, we affirm Berrys
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 representation.
Counsels motion must state that
a copy thereof was served on the client.
We dispense with oral
argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
- 5 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

November 21, 2005

December 19, 2005

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Randolph M. Lee, Charlotte, North Carolina, for Appellant. Karen

Unpublished opinions are not binding precedent in this circuit.

sentence imposed following his guilty plea to conspiracy to possess

reasons discussed below, we affirm.

meritorious grounds for appeal but suggesting the district court

Although notified of his right to do so,

Berry has not filed a pro se supplemental brief.

Because Berry failed to

challenge the 851 enhancement on this ground in the district

See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).

notified the defendant that it was seeking an enhanced sentence

based on prior convictions.

The presentence report

also advised the defendant of the aggravating effect of the prior

The defendant did not object to that portion of the

presentence report and acknowledged the aggravating effect of the

concluded that the district courts failure to comply with the

Nonetheless, we held that, because the defendant apparently was on

Id. (applying plain error

The prior felony

discussion of Berrys criminal history, yet Berry made no objection

The presentence report also

clearly explained the impact of the prior felony drug offense on

Although Berry initially argued that the conviction did not

Because Berry could not plausibly argue that he

In Booker, the Supreme Court held

guidelines required courts to impose sentencing enhancements based

125 S. Ct. at 746, 750 (Stevens, J.,

The Court remedied the constitutional

3553(b)(1) (West Supp. 2005) (requiring sentencing courts to

appellate standards of review for guideline issues), thereby making

Berrys sentence did not violate Booker because he was

sentenced to the statutory minimum for his offense. As we recently

alter the rule that judges cannot depart below a statutorily

meritorious issues for appeal.

Accordingly, we affirm Berrys

This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

If the client requests

that a petition be filed, but counsel believes that such a petition

Counsels motion must state that

a copy thereof was served on the client.

We dispense with oral

argument because the facts and legal contentions are adequately

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