United States of America, Plaintiff-appellee, v. G.h. Sizemore, Defendant-appellant, 977 F.2d 584 (6th Cir. 1992)

ORDER

G.H. Sizemore, a federal prisoner, appeals the district court's judgment following his guilty plea to one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) (1) and 924(a) (2). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Sizemore was charged with two counts of felon in possession of a firearm as a result of state arrests in September 1989 and September 1990. After initially pleading not guilty, Sizemore changed his plea on August 30, 1991, to guilty of count 1. Judge Siler sentenced Sizemore on November 7, 1991, to 30 months imprisonment and 3 years supervised release. Count 2 was dismissed at that time upon the government's motion. The district court subsequently granted in part Sizemore's motion to credit him for time spent in state custody in relation to the offense comprising the federal charge.

Sizemore's court-appointed counsel has filed a brief on appeal and also a motion to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738 (1967). In this brief, counsel presents Sizemore's argument that he was erroneously sentenced to 30 months as a result of having been charged by the state with possession of marijuana on September 13, 1990. Although notified by counsel that he had 21 days in which to file a supplemental pro se brief, Sizemore has filed neither a pro se brief nor a response to counsel's brief.

Upon review, we affirm the district court's judgment. Sizemore is precluded from appealing his sentence because it is within the applicable guideline range, is not in violation of law, and is not the result of an incorrect application of the guidelines. See 18 U.S.C. § 3742; United States v. Sawyers, 902 F.2d 1217, 1221 n. 5 (6th Cir. 1990), cert. denied, 111 S. Ct. 2895 (1991). Contrary to Sizemore's belief, the record does not indicate that his state arrest for possession of marijuana influenced his federal sentence for felon in possession of a firearm.

Accordingly, we grant counsel's motion to withdraw. The district court's judgment, entered November 7, 1991, is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.