US v. Roscoe Abell


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to amend/correct [998404822-2]; denying Motion to compel [998286036-2]; denying Motion for other relief [998203830-2] Originating case number: 3:07-cr-00061-FDW-1 Copies to all parties and the district court/agency. [998463189] [09-4017]

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US v. Roscoe Abell Doc. 0 Case: 09-4017 Document: 119 Date Filed: 11/10/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4017 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROSCOE ABELL, a/k/a Scoe, a/k/a Big Bra, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00061-FDW-1) Submitted: September 23, 2010 Decided: November 10, 2010 Before NIEMEYER, KING, and SHEDD, Circuit Judges. Affirmed and remanded by unpublished per curiam opinion. James S. Weidner, Jr., LAW OFFICES OF JAMES S. WEIDNER, JR., 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 Unpublished opinions are not binding precedent in this circuit. Case: 09-4017 Document: 119 Date Filed: 11/10/2010 Page: 2 PER CURIAM: Roscoe Abell pled guilty to one count of conspiracy to distribute and to possess with intent to distribute fifty grams or more of cocaine base, 500 grams or more of cocaine, marijuana, and Ecstasy, in violation of 21 U.S.C. 841(a)(1), 846 (2006), and two counts of distribution of cocaine base and aiding and abetting, (2006), 18 in violation 2 of 21 U.S.C. The 841(a)(1), court (b)(1)(C) U.S.C. (2006). district imposed an enhanced statutory mandatory minimum sentence of 240 months' imprisonment based on a prior felony drug conviction. The district court also imposed a supervised release term of fifty years. On appeal, counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), noting no meritorious issues for appeal, but questioning the constitutionality of 21 U.S.C. 851, whether the sentence was properly enhanced based on a prior felony drug conviction, In a pro and se the reasonableness brief, of the sentence imposed. supplemental Abell likewise contests the reasonableness of his imprisonment term, as well as the fifty-year supervised release term. argues for retroactive disparities application for cocaine of legislation and Abell also addressing base. sentencing powder cocaine Finding no reversible error, we affirm. We remand, however, for correction of a clerical error in the judgment. 2 Case: 09-4017 Document: 119 Date Filed: 11/10/2010 Page: 3 We have reviewed the record and conclude that the district court substantially complied with the requirements of Fed. R. Crim. P. 11 and ensured that Abell's plea was knowing and voluntary. We also conclude that the 240-month sentence and fifty-year supervised release term imposed by the district court were procedurally and substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007) (review of sentence is for abuse of discretion). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We have considered the claims asserted in counsel's brief and Abell's pro se supplemental brief and conclude they are without merit. sentence. we remand We therefore affirm Abell's conviction and Although we affirm Abell's conviction and sentence, so that the written of judgment base can be corrected in to reflect Sixteen the and distribution Seventeen to cocaine offenses guilty Counts was which Abell pled and sentenced. * * We grant Abell's motion to amend his notice of The written judgment incorrectly recites that Abell was found guilty in Counts Sixteen and Seventeen of possession with intent to distribute cocaine base. Because both possession with intent to distribute cocaine base and distribution of cocaine base are offenses under 21 U.S.C. 841(a)(1), and carry the same penalties, 21 U.S.C. 841(b)(1), the clerical error in the judgment did not affect Abell's sentence or otherwise prejudice him. 3 Case: 09-4017 Document: 119 Date Filed: 11/10/2010 Page: 4 direct appeal, but deny his "Motion to Receive Jenks and Brady Materials," and "Motion to Compel Discovery from Attorney." This writing, of court requires to that counsel the inform Abell, of in the his right petition Supreme Court United States for further review. If Abell requests that a petition be filed, but counsel believes that such filing would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral a copy thereof was served on Abell. 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 AND REMANDED 4

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