United States v. Gillian

98 F. App'x 258

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 2, 2004
• Docket: 03-4964
• Status: Unpublished

Opinion

Vacated by Supreme Court, January 24, 2005

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4964

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BOBBY GILLIAN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. David A. Faber, Chief District Judge. (CR-03-70)

Submitted: May 27, 2004 Decided: June 2, 2004

Before WIDENER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, David R. Bungard, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Kasey Warner, 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Unpublished opinions are not binding precedent in this circuit.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). PER CURIAM:

Bobby Gillian pleaded guilty to possession with the

intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)

(2000), and to being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (2000). The

district court sentenced Gillian to 188 months’ imprisonment, to be

followed by a three-year term of supervised release.

Gillian’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no

meritorious grounds for appeal, but raising two potential issues:

(1) whether the district court clearly erred in awarding Gillian

one criminal history point for a 1990 conviction and (2) whether

the district court erred in enhancing Gillian’s sentence pursuant

to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (2002) for

possessing a firearm during the commission of the drug offense.

Although advised of his right to do so, Gillian has not filed a pro

se supplemental brief.

We have reviewed the record and conclude that the

district court did not clearly err in awarding one criminal history

point for Gillian’s 1990 conviction. USSG § 4A1.2(e)(2) instructs

that all sentences imposed within ten years of the commencement of

the instant offense are to be counted in a defendant’s criminal

history. As counsel concedes, the Commentary to this section

states that relevant conduct is to be included in the determination

- 2 - of the “commencement of the offense.” USSG 4A1.2, Cmt. n.8.

Because Gillian admitted to selling drugs beginning in 1999, if not

earlier, the district court did not clearly err in counting the

1990 offense in Gillian’s criminal history.

We also conclude that the district court did not err in

enhancing Gillian’s sentence for possession of a firearm during the

commission of the offense. The gun was found in Gillian’s bedroom

closet, along with the drugs, drug paraphernalia and a large amount

of cash, which Gillian admitted was from drug sales. Unless the

connection between the gun and the offense is clearly improbable,

the court must apply the two-level enhancement. See USSG

§ 2D1.1(b)(1), Cmt. n.3. Here, we find that the district court

correctly applied the enhancement.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm Gillian’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.

- 3 - 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

- 4 -