                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 07-4102



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RICKY LAMONT SMARR, a/k/a Sergeant Bean, a/k/a
James Earl Patterson, a/k/a Ricky Lamont
Taylor, a/k/a Rashard D. Brevard,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cr-00293-JAB)


Submitted:   July 11, 2007                 Decided:   July 20, 2007


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Ames C. Chamberlin, LAW OFFICES OF AMES C. CHAMBERLIN, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Clifton T. Barrett, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ricky Smarr pled guilty to possession with intent to

distribute 207.6 grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A) (2000), and the district court found Smarr

qualified    as    a     career    offender     pursuant   to    U.S.   Sentencing

Guidelines Manual (“USSG”) § 4B1.1 (2005).                   After granting the

Government’s      motion     for    downward     departure      based   on   Smarr’s

substantial assistance, the court sentenced Smarr to 148 months’

imprisonment.      Smarr appealed.

            Smarr’s counsel filed a brief pursuant to Anders v.

California,       386    U.S.     738   (1967),    contending      there     are   no

meritorious issues for appeal but asserting the district court

erroneously sentenced Smarr as a career offender.                   Smarr did not

file a pro se supplemental brief, despite being notified of his

right to do so.         In its responding brief, the Government maintains

the court sentenced Smarr properly.               Finding no reversible error,

we affirm.

            We review “legal questions, including the interpretation

of the guidelines, de novo, while factual findings are reviewed for

clear error.”       United States v. Moreland, 437 F.3d 424, 433 (4th

Cir.), cert. denied, 126 S. Ct. 2054 (2006).                    A defendant is a

career offender if:         (1) he was at least eighteen years old when

the instant offense was committed; (2) the instant offense is a

felony and is either a crime of violence or a drug offense; and


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(3) he has at least two prior felony convictions for crimes of

violence or drug offenses.        See USSG § 4B1.1.    Counsel asserts that

two offenses to which Smarr pled guilty in state court should not

count for career offender purposes.               Counsel notes that Smarr

failed to appear for sentencing as to both offenses and that

according to his signed guilty plea colloquy, he could withdraw his

guilty pleas if he appeared at sentencing and the trial court

sentenced him above the prosecutor’s recommended sentence. Because

Smarr did not appear for sentencing, counsel asserts this condition

was   never    met   and   the   guilty   pleas   cannot   be   considered   in

determining career offender status.           We reject this argument for

the reasons stated by the Government and the district court at

Smarr’s sentencing hearing.

              In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                   We

therefore affirm Smarr’s conviction and sentence.                  This court

requires that counsel inform Smarr, in writing, of the right to

petition the Supreme Court of the United States for further review.

If Smarr 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 Smarr.

      We dispense with oral argument because the facts and legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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