US v. Billy Pendergrass, No. 08-4712 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4712 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BILLY LEROY PENDERGRASS, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, District Judge. (4:06-cr-01139-TLW-1) Submitted: July 10, 2009 Before WILKINSON and Senior Circuit Judge. DUNCAN, Decided: Circuit Judges, July 20, 2009 and HAMILTON, Affirmed by unpublished per curiam opinion. Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH, JR., Florence, South Carolina, for Appellant. Arthur Bradley Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Billy Leroy Pendergrass pled guilty to one count of possession with crack, violation in (2006). intent to of distribute 21 U.S.C. ยง five or more 841(a)(1), grams of (b)(1)(B)-(C) In a written plea agreement, the parties agreed to a 222-month sentence, and the government agreed to dismiss the remaining ten sentencing counts hearing, in the an eleven-count district court indictment. imposed the At the 222-month sentence and an additional eight years of supervised release. The court subsequently entered an amended judgment reducing the term of supervised release to four years. Pendergrass counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that, in his view, there are no meritorious issues for appeal. In his brief, however, counsel questions whether the district court erred in amending the judgment under Fed. R. Crim. P. 36. Pendergrass was informed of his right to file a pro se supplemental brief but has not done so. Pendergrass has, however, filed a pro se motion seeking to strike the Anders brief. Finding no error, we affirm the judgment and deny Pendergrass motion. Rule 36 allows the district court to correct a clerical mistake in the judgment or other part of the record arising government from oversight mistakenly or omission. retained a 2 In sentencing this case, enhancement the that increased Pendergrass term of supervised release. filed a consent motion, and the district motion and entered an amended judgment. court Pendergrass granted the In short, there is no error, since Pendergrass motion was granted and he received the sentence for which he bargained. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. The plea colloquy confirms that the district court fully complied with the mandates of Rule 11 in accepting Pendergrass guilty plea. See United States v. DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). We further conclude that Pendergrass sentence is both procedurally and substantively reasonable. therefore deny Pendergrass motion to strike and affirm We his conviction and sentence. This court requires that counsel inform Pendergrass, in writing, of his right to petition the Supreme Court of the United States for further review. If Pendergrass 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 on that dispense a with copy oral thereof was argument served because 3 the Pendergrass. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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