US v. Marquice Rivers, No. 13-4848 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4848 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARQUICE LUMONT RIVERS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:10-cr-00012-MR-2) Submitted: June 10, 2014 Decided: June 27, 2014 Before SHEDD, DIAZ, and THACKER, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Wm. Grayson Lambert, MCGUIREWOODS, LLP, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marquice Lumont Rivers pled guilty to an indictment charging that, between August 2008 and April 2009, he conspired to possess with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 (2012). On March 1, 2012, Rivers was sentenced to 262 months imprisonment. On appeal, v. counsel has filed a brief pursuant to Anders California, 386 U.S. 738 (1967), asserting that there are no meritorious district issues court for erred in appeal, using but questioning Rivers prior whether convictions the to sentence him as a career offender and whether Rivers sentence was reasonable. Rivers has not filed a supplemental pro se brief, despite notice of his right to do so. While we affirm Rivers conviction, we find that his sentence violates the rule announced in Dorsey v. United States, 132 S. Ct. 2321 (2012); accordingly, we vacate the sentence and remand for resentencing. 1 Counsel first questions the district court s use of Rivers prior enhancement at convictions sentencing. to The apply U.S. the career Sentencing offender Guidelines Manual ( USSG ) provides, in relevant part, that a defendant is a career offender if he was at least eighteen years old at the 1 The district court did not have the benefit of Dorsey, which was issued after Rivers was sentenced but prior to this appeal. 2 time of the instant offense, the instant offense is a drug felony or crime of violence, and the defendant has at least two prior felony violence. convictions for drug offenses See USSG § 4B1.1(a) (2010). or crimes of Any prior sentence of imprisonment exceeding one year and one month is counted if that sentence was imposed within fifteen years of the commencement of the instant offense. USSG § 4A1.2(e); see USSG § 4B1.2 cmt. n.3 (counting provisions of § 4A1.2 are applicable to counting of convictions under § 4B1.1). The record before this court establishes that both of Rivers prior felony drug convictions satisfy the requirements for the application of the career offender enhancement. At the time of sentencing, the district court believed that Rivers faced imprisonment. a After statutory maximum sentencing, the sentence Supreme of Court life issued Dorsey, which held that the more lenient penalties of the Fair Sentencing Act of 2010 ( FSA ) applied to pre-FSA offenders who were sentenced after the FSA s effective date. Ct. at 2331. Because Rivers was sentenced Dorsey, 132 S. after the Act s effective date for conduct that occurred prior to that date, the Act applies to him. Rivers pled guilty to conspiracy to distribute at least fifty grams of cocaine base, and the parties agreed at sentencing that Rivers was responsible for 55.6 grams of cocaine base. Under the amended 3 version of 21 U.S.C. § 841(b)(1)(B) forty years calculation § 4B1.1(b). be (2012), vacated Rivers imprisonment, of his career statutory a maximum change offender which offense sentence impacts level is the under USSG We conclude, therefore, that Rivers sentence must and the case remanded to the district court for resentencing. 2 In accordance with Anders, we have reviewed the record for other meritorious issues and have found none. Accordingly, we affirm Rivers conviction, vacate his sentence, and remand for resentencing Dorsey. writing, This of in court his accordance requires right to with that petition United States for further review. the counsel the rule announced inform Supreme Rivers, Court of in in the If Rivers 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 at that time. Counsel s motion must state that a copy thereof was served on Rivers. dispense with oral argument because 2 the facts and We legal Because we are remanding for resentencing under the FSA, we need not address Rivers challenge to the substantive reasonableness of his sentence. 4 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART AND REMANDED 5
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