UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 95-5377

JAMES RALPH HARRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-94-667)

Submitted: March 19, 1996

Decided: April 15, 1996

Before WILKINS, HAMILTON, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Susan Z. Hitt, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. J. Preston Strom, Jr., United States Attorney,
William E. Day, II, Assistant United States Attorney, Florence, South
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

James Ralph Harris appeals his conviction and sentence after enter-
ing a guilty plea to one count of assaulting a United States postal car-
rier with intent to rob, 18 U.S.C.A. § 2114 (West Supp. 1995), 18
U.S.C. § 2 (1988). After a thorough review of the parties' briefs and
the record, we affirm.

At his plea hearing, the Government described how Appellant and
his cousin Natasha Harris robbed postal carrier H.B. Mahoney to
obtain food stamps. Appellant and Natasha borrowed a car belonging
to Appellant's sister, Wendy Pettus. Appellant approached Mahoney
and asked to buy some postage stamps. As Mahoney retrieved the
stamps, Appellant sprayed his face with pepper mace and fled with
bundles of mail. Mail recovered after the robbery bore Natasha's fin-
ger prints. Natasha later confessed to the crime and detailed Appel-
lant's role for police.

The Government returned a three-count indictment charging
Appellant, Natasha Harris, and Wendy Pettus with offenses related to
the robbery. Appellant negotiated a plea agreement with the Govern-
ment. In exchange for Appellant's guilty plea to count one of the
indictment, the Government dismissed two counts against him and the
single count pending against Pettus.

Before entering his plea, Appellant stated under oath that he was
a high school graduate, did not suffer from mental illness or drug
addiction, was not under the influence of any drugs, had fully dis-
cussed his indictment and case with his attorney, and was fully satis-
fied with counsel's representation and advice. After the prosecutor
recited the provisions of the plea agreement in open court, Appellant
stated that he understood the agreement. He stated that no one had
made other promises or assurances to him concerning his plea and
that no one had attempted to force or intimidate him into pleading
guilty. The court explained the possible civil and criminal penalties
resulting from his plea, which he confirmed he understood. Appellant
then explained his understanding of supervised release, acknowledg-
ing that a violation thereof could result in an additional prison sen-

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tence. The court described the nature of sentencing under the
Guidelines, and Appellant averred that he understood.

The court also advised Appellant of the rights he relinquished in
pleading guilty, including the right: (1) to a trial by jury; (2) to a
jury's determination of guilt beyond a reasonable doubt; (3) to be rep-
resented by counsel; (4) to question and cross-examine witnesses; (5)
to present testimony and subpoena witnesses; and (6) to testify or not
to testify on his own behalf. The court outlined the charge against him
and explained the essential elements the Government would have to
prove at trial. The court also heard from the Government on the fac-
tual basis for the plea. Appellant admitted his guilt, and the court
accepted his guilty plea. The court confirmed that the plea agreement
required the Government to dismiss two counts against Appellant and
the count against his sister. The court found Appellant's plea know-
ing, voluntary, and supported by each essential element of the crime
charged.

At sentencing, Appellant objected to a pending state criminal
charge described in his presentence report, claiming it had been dis-
missed. The court assured counsel that "the pending charge will not
be considered in any way, whether it's pending or not. I find it to be
insignificant and I do not consider it."

The court noted that Natasha Harris and Wendy Pettus had stated
that they smoked crack cocaine with Appellant immediately prior to
committing the crime. Appellant denied using drugs of any kind. The
court stated that it was "interested for purposes of sentencing whether
treatment for a drug problem is warranted, not so much in determin-
ing the appropriate sentence within the Guidelines." The court told
Appellant that his use of crack would not be considered in setting his
sentence length but would be considered in deciding whether to order
drug testing and surveillance during supervised release. Appellant
again denied drug use.

The court held an evidentiary hearing on the issue. The Govern-
ment called Natasha Harris, who testified that she and Appellant
smoked crack before the robbery. She admitted that the crack
belonged to her. She stated that she had smoked crack with Appellant
on four or five other occasions and that she usually supplied the drug.

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She admitted she was a regular user of crack cocaine at the time.
Appellant elected not to testify further on the issue. The court found
Natasha Harris's admission credible and ordered drug treatment as a
condition of Appellant's supervised release.

Appellant was sentenced to a term of thirty-seven months impris-
onment, at the bottom of the applicable Guidelines range.* After the
sentence was pronounced, counsel renewed his motion for release on
bond pending the beginning of his prison term. The Government
pointed out that Appellant was convicted of a violent crime and had
been denied bond in his initial detention hearing and on motion for
reconsideration. The court denied the motion, noting its disbelief of
Appellant's denial of drug use.

Appellant noted an appeal from his conviction and sentence. Coun-
sel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating her belief that no meritorious issues exist on appeal but raising
several claims. Appellant was advised of his right to file a brief to
supplement the issues raised by counsel, but he did not do so.

Appellant first challenges the sufficiency of the Fed. R. Crim. P.
11 colloquy at his plea hearing. We find no merit to this claim. The
court fully apprised Appellant of his rights under Rule 11(c) and of
the consequences of his plea. The court also confirmed that a suffi-
cient factual basis existed to support the plea. See Fed. R. Crim. P.
11(f); United States v. Morrow, 914 F.2d 608, 611 (4th Cir. 1990).
There is no evidence in the record which would rebut the strong pre-
sumption of veracity accorded Appellant's statements in open court.
Morrow, 914 F.2d at 613-14. The dictates of Rule 11 were fully satis-
fied.
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*United States Sentencing Commission, Guidelines Manual (Nov.
1994). The base offense level for assault of a mail carrier with intent to
rob is twenty. USSG § 2B3.1(a) & App. A. Harris received a two point
enhancement for stealing property of the United States Post Office, the
undelivered mail. See USSG § 2B3.1(b)(1)(A). Appellant received a
three-level reduction for acceptance of responsibility under USSG
§ 3E1.1(a), (b). His total offense level, therefore, was nineteen. His crim-
inal history category was III, resulting in an applicable guidelines range
of thirty-seven to forty-six months imprisonment. USSG Ch. 5 Pt. A.

                    4
Appellant next alleges that his plea was coerced by the Govern-
ment's promise to drop the charge against his sister. However, such
a provision is "a legitimate bargaining tool in the plea process."
United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991) (citing
LoConte v. Dugger, 847 F.2d 745, 752 (11th Cir.), cert. denied, 488
U.S. 958 1988)), cert. denied, 503 U.S. 997 (1992). The Govern-
ment's agreement not to prosecute Wendy Pettus was merely part of
the consideration for Appellant's plea of guilty. See id. The provision
was plainly part of the written agreement and was identified by the
court before accepting the plea. Moreover, Appellant stated under
oath that he was not forced or intimidated into entering a guilty plea
and had not been made any promises beyond those contained in the
written contract.

Appellant faults the sentencing court for considering certain
charges pending against him in New York in setting his Guideline
range and sentence. He also avers that the court improperly consid-
ered his alleged drug usage, which he denied, in setting his sentence.
However, these claims are refuted by the record. Neither the pending
state charges nor the alleged drug use were factors in sentencing.
They were not used to set Appellant's offense level or criminal his-
tory category. The sentencing court explicitly stated that they were
not a consideration in setting Appellant's sentence. The court's state-
ment was confirmed when it sentenced Appellant to the minimum
prison term allowable within the applicable Guidelines range.

The court considered Appellant's prior drug usage in ordering drug
treatment as a condition of supervised release. However, we hold that
the court's finding was not clearly erroneous. United States v.
Falesbork, 5 F.3d 715, 722 (4th Cir. 1993). The court held an eviden-
tiary hearing on the issue and found credible Natasha Harris's admis-
sion that she used crack with Appellant. See USSG § 6A1.3(a). Such
testimony is sufficient to establish that Appellant used crack cocaine
by a preponderance of the evidence. See Falesbork, 5 F.3d at 722;
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

Appellant's last contention is that the sentencing court erred in
refusing to release him on bond pending execution of his sentence.
Under 18 U.S.C.A. § 3143(a) (West Supp. 1995), the sentencing
judge "shall order that a person who has been found guilty of an

                    5
offense and who is awaiting imposition or execution of sentence . . .
be detained, unless the judicial officer finds by clear and convincing
evidence that the person is not likely to flee or pose a danger to the
safety of any other person or the community if released . . . ." Because
Appellant is currently serving his sentence in a federal correctional
institution in Estill, South Carolina, his claim is moot. Moreover, to
the extent that his motion can be construed as a request for release
pending appeal, Appellant has not met his burden of presenting a sub-
stantial question for this Court's review. United States v. Steinhorn,
927 F.2d 195, 196 (4th Cir. 1991). Finally, Appellant did not show
by clear and convincing evidence that he would not be a risk if
released. The court's finding that he was less than"candid" about his
crack cocaine usage and the fact that he committed a violent crime
previously while under the influence of the drug are sufficient to jus-
tify denying the motion.

In accordance with Anders, we have thoroughly examined the
entire record for any potentially meritorious issues for appeal. We
find none. This court requires that counsel inform her client in writing
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may move
this court for leave to withdraw from representation. Counsel's
motion must state that a copy thereof was served on the client. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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