United States of America v. James Gregory Elliott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4566
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES GREGORY ELLIOTT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CR-03-15-REM)
Submitted: December 15, 2005 Decided: December 20, 2005
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. Stephen Donald Warner, OFFICE OF THE
UNITED STATES ATTORNEY, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
James Gregory Elliott appeals his conviction and
240-month sentence imposed after he pled guilty to operating a
crack house, in violation of 21 U.S.C. § 856(a) (2000). Elliott’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), raising several issues but stating that, in his view,
there are no meritorious issues for appeal. Elliott was informed
of his right to file a pro se supplemental brief but has not done
so. We affirm.
Counsel questions the district court’s compliance with
Fed. R. Crim. P. 11, in accepting Elliott’s guilty plea. Because
Elliott did not move in the district court to withdraw his guilty
plea, any error in the Rule 11 hearing is reviewed for plain error.
United States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). Our
review of the plea colloquy leads us to conclude that the district
court fully complied with the mandates of Rule 11 in accepting
Elliott’s guilty plea. Thus, there is no error, plain or
otherwise.
Next, counsel questions whether the district court erred
in determining the amount of drugs attributable to Elliott, in
concluding that Elliott possessed a firearm during the commission
of the offense, and in declining to award a downward adjustment for
acceptance of responsibility. The district court sentenced Elliott
after the Supreme Court decided United States v. Booker, 543 U.S.

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220 (2005), and properly calculated Elliott’s total offense level
and criminal history category to establish an advisory sentencing
guideline range of 324 to 405 months of imprisonment. However, the
statutory maximum sentence applicable to Elliott’s offense of
conviction is twenty years, see 21 U.S.C. § 856(b) (2000); thus,
the twenty-year statutory maximum became the applicable guideline
range. U.S. Sentencing Guidelines Manual § 5G1.1(a) (2003). We
therefore find no error in Elliott’s sentence.
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found
none. Accordingly, we affirm Elliott’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
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 contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED

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