US v. Langley, No. 05-4974 (4th Cir. 2006)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-4974 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus KENNETH O. LANGLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (CR-04-73) Submitted: October 31, 2006 Decided: November 21, 2006 Before TRAXLER, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. David B. Betts, Columbia, South DeArmon Whitney, United States Assistant United States Attorney, UNITED STATES ATTORNEY, Raleigh, Carolina, for Appellant. Frank Attorney, Anne Margaret Hayes, Kimberly Ann Moore, OFFICE OF THE North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Kenneth O. Langley appeals his conviction and sentence following a guilty plea to conspiracy to possess with intent to distribute more than fifty grams of cocaine base, in violation of 18 U.S.C. ยงยง 841(a)(1) and 846 (2000). Langley s attorney on appeal has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but raising as potential issues whether the district court complied with Fed. R. Crim. P. 11 and whether the district court erred in considering a prior uncounseled conviction in determining Langley s criminal supplemental brief. history points. Langley filed a pro se Finding no reversible error, we affirm. First, counsel raises the issue of whether the district court fully complied with Rule 11, but identifies no error in the Rule 11 proceeding and concludes that there was full compliance with the Rule. After a thorough review of the record, we similarly find that the district court complied with the requirements of Rule 11. Next, counsel questions whether the district court erred in considering a prior uncounseled misdemeanor plea conviction that resulted in a thirty-day suspended Langley s criminal history points. sentence in calculating A defendant may challenge at sentencing the validity of a prior conviction on the ground that he was denied counsel. Custis v. United States, 511 U.S. 485, 495 - 2 - (1994). However, he bears the burden of showing that the prior conviction is invalid. 11 (4th Cir. 1992). United States v. Jones, 977 F.2d 105, 110- Langley had to overcome the presumption that the state court informed him of his right to counsel as it was required by statute to do and that, if he was not represented, it was because he waived his right to counsel. 506 U.S. 20, 28-34 (1992). See Parke v. Raley, We find the district court did not err in finding Langley failed to overcome the presumption that the state court informed him of his right to counsel. Thus, the court did not err by considering the prior conviction in calculating Langley s criminal history. We find Langley s claims in his pro se supplemental brief to be without merit. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Langley 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 representation. in this facts and for leave to withdraw from Counsel s motion must state that a copy thereof was served on the client. the court We dispense with oral argument because legal contentions are adequately presented in the - 3 - materials before the court and argument would not aid the decisional process. AFFIRMED - 4 -

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