US v. Charlie Strother

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:07-cr-00061-FDW-15 Copies to all parties and the district court/agency. [998416266] [09-4137]

US v. Charlie Strother

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Date Filed: 09/01/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4137 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLIE RENZELL STROTHER, a/k/a Rallo, 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-15) Submitted: August 5, 2010 Decided: September 1, 2010

Before NIEMEYER, KING, and SHEDD, Circuit Judges. Affirmed and remanded by unpublished per curiam opinion. Thomas Joseph Blackwood, III, Charlotte, North Carolina, for Appellant. Edward R. Ryan, United States Attorney, Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Charlie Renzell Strother pled guilty before a

magistrate judge 1 to distributing five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). The district court imposed the statutory mandatory minimum

sentence of 120 months' imprisonment.

On appeal, counsel has

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), noting no meritorious issues for appeal, but questioning whether the sentence imposed was reasonable. We affirm the

conviction and sentence, but remand for the district court to correct the written judgment to reflect the offense to which Strother pled guilty. We conclude without difficulty that the 120 month

sentence imposed by the district court was reasonable.

See Gall

v. United States, 552 U.S. 38, 51 (2007) (review of sentence is for abuse of discretion). discretion to sentence The district court simply had no below the statutory minimum,

Strother

United States v. Robinson, 404 F.3d 850, 862 (4th Cir. 2005), and his sentence to the mandatory minimum is thus per se

reasonable.
1

United States v. Farrior, 535 F.3d 210, 224 (4th

Strother consented to enter his plea before the magistrate judge. See United States v. Osborne, 345 F.3d 281, 285 (4th Cir. 2003) (allowing magistrate judges to conduct plea hearings if a defendant waives his right to proceed before a district judge). 2

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Cir. 2008).

The judgment, however, repeated an error contained

in the presentence report, erroneously describing the offense in Count cocaine Thirty-Three base, as possession than the with intent of to distribute base

rather

distribution

cocaine

offense with which Strother was charged and to which he pled guilty. 2 Therefore, accordance sentence, with but after we reviewing affirm the the entire record in and be

Anders, remand so

Strother's written

conviction can

that

judgment

corrected to reflect the offense to which Strother pled guilty-distribution of cocaine base. 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 filing 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 dispense with oral argument because the facts and legal

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)(B), the clerical error in the judgment did not affect Strother's sentence or otherwise prejudice him. 3

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contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED AND REMANDED

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