Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. David Michael Corey, Defendant-appellant, 87 F.3d 1309 (4th Cir. 1996)

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US Court of Appeals for the Fourth Circuit - 87 F.3d 1309 (4th Cir. 1996)

Submitted: May 16, 1996. Decided: May 31, 1996

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, District Judge. (CR-94-30143)

Matthew H. Fair, Elkins, WV, for Appellant. Samuel G. Nazzaro, Jr., Assistant United States Attorney, Wheeling, WV, for Appellee.

N.D.W. Va.


Before RUSSELL, LUTTIG, and WILLIAMS, Circuit Judges.



David Michael Corey pled guilty to distributing .13 grams of crack cocaine within 1000 feet of a school, 21 U.S.C.A. §§ 841, 860 (West 1981 & Supp.1995), and was sentenced to a term of 30 months imprisonment. Corey's attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), raising one issue but stating that, in his view, there are no meritorious grounds for appeal. Corey has been informed of his right to file a pro se supplemental brief, but has chosen not to file a brief.

We find that the district court did not plainly err in adding two criminal history points to Corey's criminal history score under USSG § 4A1.1(e).*  The guideline provides that two points are added if the defendant committed the instant offense less than two years after release from imprisonment. Corey was paroled from a one-to-ten-year sentence on April 17, 1992. He committed the instant offense on February 14, 1994. Although he had been transferred from the state penitentiary to a work release facility four months before he was paroled, the time spent on work release counted as part of his sentence of imprisonment.

In accordance with Anders, we have examined the entire record in this case and find no meritorious issues for appeal. We therefore affirm Corey's conviction and the sentence imposed by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.

We deny counsel's motion to withdraw at this time. 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 in this court for

leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.



United States Sentencing Commission, Guidelines Manual (Nov.1994)