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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding defendant Tony Little's appeal of his sentence for conspiracy to distribute cocaine. The Court of Appeals affirms Little's sentence. It finds that enhancing Little's sentence for possession of a dangerous weapon did not violate United States v. Booker because the facts admitted in Little's plea agreement supported a maximum sentence of life imprisonment, above which the enhancement did not take the sentence. The court also finds the district court's factual basis for the enhancement was not clearly erroneous. The appeals court therefore affirms Little's conviction and sentence.

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    Unpublished

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding defendant Tony Little's appeal of his sentence for conspiracy to distribute cocaine. The Court of Appeals affirms Little's sentence. It finds that enhancing Little's sentence for possession of a dangerous weapon did not violate United States v. Booker because the facts admitted in Little's plea agreement supported a maximum sentence of life imprisonment, above which the enhancement did not take the sentence. The court also finds the district court's factual basis for the enhancement was not clearly erroneous. The appeals court therefore affirms Little's conviction and sentence.

    Original Description:

    Filed: 2007-06-04 Precedential Status: Non-Precedential Docket: 06-4877

    Original Title

    United States v. Little, 4th Cir. (2007)

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    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding defendant Tony Little's appeal of his sentence for conspiracy to distribute cocaine. The Court of Appeals affirms Little's sentence. It finds that enhancing Little's sentence for possession of a dangerous weapon did not violate United States v. Booker because the facts admitted in Little's plea agreement supported a maximum sentence of life imprisonment, above which the enhancement did not take the sentence. The court also finds the district court's factual basis for the enhancement was not clearly erroneous. The appeals court therefore affirms Little's conviction and sentence.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    25 views4 pages

    Unpublished

    Uploaded by

    Scribd Government Docs
    This document is an unpublished opinion from the United States Court of Appeals for the Fourth Circuit regarding defendant Tony Little's appeal of his sentence for conspiracy to distribute cocaine. The Court of Appeals affirms Little's sentence. It finds that enhancing Little's sentence for possession of a dangerous weapon did not violate United States v. Booker because the facts admitted in Little's plea agreement supported a maximum sentence of life imprisonment, above which the enhancement did not take the sentence. The court also finds the district court's factual basis for the enhancement was not clearly erroneous. The appeals court therefore affirms Little's conviction and sentence.

    Copyright:

    Public Domain
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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 06-4877

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    TONY LAVETTE LITTLE,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Richard L. Voorhees,
    District Judge. (3:00-cr-00027-V)

    Submitted:

    May 4, 2007

    Decided:

    June 4, 2007

    Before MICHAEL, KING, and GREGORY, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Camille M. Davidson, FULLER & BARNES, LLP, Charlotte, North


    Carolina, for Appellant. Amy E. Ray, OFFICE OF THE UNITED STATES
    ATTORNEY, Asheville, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Pursuant to a plea agreement, Tony Lavette Little pled
    guilty to conspiracy to possess with intent to distribute powder
    cocaine

    and

    cocaine

    base,

    841(b)(1)(A), 846 (2000).

    in

    violation

    of

    21

    U.S.C.

    After granting the Governments U.S.

    Sentencing Guidelines Manual (USSG) 5K1.1 (2000) motion for a


    downward departure based on Littles substantial assistance, the
    district court sentenced Little to 235 months imprisonment.
    Appellate counsel has filed a brief pursuant to Anders v.
    California, 386 U.S. 738 (1967), asserting there are no meritorious
    issues for appeal but requesting we review whether a sentencing
    enhancement for possession of a dangerous weapon was proper.

    In

    his informal brief, Little argues the enhancement, which applied a


    two-level

    increase

    to

    his

    offense

    level

    pursuant

    to

    USSG

    2D1.1(b)(1), violated United States v. Booker, 543 U.S. 220


    (2005).

    The Government declined to file a responding brief.

    Finding no reversible error, we affirm.


    Under Booker, when a defendant is sentenced under a
    mandatory guidelines scheme, [a]ny fact (other than a prior
    conviction) which is necessary to support a sentence exceeding the
    maximum authorized by the facts established by a plea of guilty or
    a jury verdict must be admitted by the defendant or proved to a
    jury beyond a reasonable doubt.

    Booker, 543 U.S. at 224.

    Little

    contested the dangerous weapon enhancement at sentencing, and

    - 2 -

    treating the sentencing guidelines as mandatory, the district court


    found the enhancement was warranted based on a preponderance of the
    evidence.
    We conclude the enhancement does not amount to Sixth
    Amendment

    error

    under

    Booker.1

    To

    establish

    that

    Sixth

    Amendment error occurred in his sentencing, [an appellant] must


    show that the district court imposed a sentence exceeding the
    maximum allowed based only on the facts that he admitted.
    States v. Evans, 416 F.3d 298, 300 (4th Cir. 2005).

    United

    In the plea

    agreement, Little stipulated he was responsible for at least 1.5


    kilograms of cocaine base for sentencing purposes, creating a base
    offense level of thirty-eight.
    quantity table).

    See USSG 2D1.1(c)(1) (drug

    Little did not contest his criminal history

    category of V at sentencing.

    As a consequence, the maximum

    allowable sentence based only on the facts Little admitted was life
    imprisonment.

    See USSG Ch. 5, Pt. A (sentencing table).

    The USSG

    2D1.1(b)(1) enhancement was accordingly permissible.2

    Although the district court sentenced Little in accordance


    with the law and procedures then in effect, it committed statutory
    Booker error by treating the guidelines as mandatory, see United
    States v. Rodriguez, 433 F.3d 411, 414 (4th Cir. 2006). However,
    there is no indication the district court wished to sentence Little
    below the sentencing guidelines range but was prevented from doing
    so by a mandatory application of the guidelines.
    See United
    States v. White, 405 F.3d 208, 223-24 (4th Cir.), cert. denied, 126
    S. Ct. 668 (2005). Thus, there is no nonspeculative basis for
    finding prejudice. Id. at 223.
    2

    Furthermore, the district courts finding an adequate factual


    basis supported the enhancement was not clearly erroneous. See
    - 3 -

    In accordance with Anders, we have reviewed the record in


    this case and have found no meritorious issues for appeal.
    therefore affirm Littles conviction and sentence.

    We

    This court

    requires that counsel inform Little, in writing, of the right to


    petition the Supreme Court of the United States for further review.
    If Little 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.

    Counsels

    motion must state that a copy thereof was served on Little.


    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

    United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001); see
    also USSG 2D1.1(b)(1), comment. (n.3) ([This] adjustment should
    be applied if the weapon was present, unless it is clearly
    improbable that the weapon was connected with the offense.). It
    was not clearly improbable the weapon was connected with the
    offense.
    - 4 -

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