United States of America, Plaintiff-appellee, v. Michael Joseph Fleming, Defendant-appellant, 954 F.2d 720 (4th Cir. 1992)

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US Court of Appeals for the Fourth Circuit - 954 F.2d 720 (4th Cir. 1992) Submitted Feb. 3, 1992. Decided Feb. 11, 1992

Appeal from the United States District Court for the District of South Carolina, at Greenville. Solomon Blatt, Jr., Senior District Judge. (CR-90-477).

Charles B. Patterson, Greenville, S.C., for appellant.

E. Bart Daniel, United States Attorney, Matthew R. Hawley, Jr., Assistant United States Attorney, Greenville, S.C., for appellee.



Before WIDENER, HAMILTON and LUTTIG, Circuit Judges.



Michael Joseph Fleming appeals from his sentence for bank robbery. The district court gave Fleming a two-level enhancement because the presentence report indicated he had expressly threatened the bank teller's life during the robbery. See United States Sentencing Commission, Guidelines Manual, § 2B3.1(b) (2) (D) (Nov. 1990). Although Fleming denies he made such a threat, he did not object to the presentence report because he did not believe he could prevail factually. Instead, he noted at sentencing that he disputed the presentence report's factual findings and recommendations and asked for leniency. He now contends that the district court erred in enhancing his sentence.

Because Fleming withdrew his objection, the district court had no reason not to follow the recommendation of the presentence report and enhance Fleming's sentence. Accordingly, as long as his sentence is within the appropriate guidelines range, it is not subject to appellate review. United States v. Roberts, 881 F.2d 95, 107 (4th Cir. 1989). His sentence was within appropriate range; thus, his appeal is without merit, and we affirm.

Fleming's counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), that raised Fleming's objection to the enhancement but which indicated that, in his view, there were no meritorious issues for appeal. In accordance with the requirements of Anders, we have examined the entire record in this case and find no issues of merit. Pursuant to the plan adopted by the Fourth Circuit Judicial Council in implementation of the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (1988), this Court requires that counsel inform his client, in writing, of his right to petition the Supreme Court for further review. If requested by his client to do so, counsel should prepare a timely petition for a writ of certiorari.

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.