United States v. Guerra

39 F. App'x 824

Opinion

OPINION

PER CURIAM.

Appellants Ruthven Young, Don Guerra, and Ashberth Guerra appeal their sentences imposed by the district court on resentencing following the partial grant of relief pursuant to Appellants’ motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001), claiming their sentences violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Appellants noted timely appeals and their counsel have filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting there are no meritorious issues for appeal but raising Apprendi claims. Appellants were informed of their right to file a pro se supplemental brief and have not done so.

Appellants were all convicted of multiple charges for conspiracy and substantive drug offenses in violation of 21 U.S.C.A. §§ 841 and 846 (West Supp.2001). Young was sentenced to 235 months imprisonment, Ashberth Guerra was sentenced to 324 months imprisonment, and Don Guerra was sentenced to 360 months imprisonment. Young’s guideline range was 235 to 292 months, Ashberth Guerra’s guideline range was 324 to 405 months imprisonment, and Don Guerra’s guideline range was 360 months of imprisonment to life.

Assuming, without deciding, that Appellants may assert Apprendi errors under the procedural posture of this case, we find no reversible error on resentencing. Appellant Young’s sentence did not exceed the applicable statutory maximum. See United States v. Promise, 255 F.3d 150, 154-55 (4th Cir.2001) (en banc). More over, the district court was obliged, under the Guidelines, to impose consecutive sentences on Don and Ashberth Guerra for their multiple convictions to the extent necessary to achieve a sentence within the guideline range. United States v. White, 238 F.3d 537, 542-43 (4th Cir.), cert. denied, 532 U.S. 1074, 121 S.Ct. 2235, 150 L.Ed.2d 225 (2001). Hence, Apprendi does not affect Appellants’ sentences.

In accordance with Anders, we have reviewed the record and find no meritorious issues. Accordingly, we affirm the district court’s judgment. This court requires that counsel inform their clients, in writing, of the clients’ right to petition the Supreme Court of the United States for further review. If the clients request 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 clients. 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.