                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4159


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WARREN EDWARD FORNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:08-cr-00107-MR-3)


Submitted:   June 29, 2011                 Decided:   August 4, 2011


Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Reita P. Pendry, 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Unpublished opinions are not binding precedent in this circuit.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:

              Warren   Edward     Forney        pleaded   guilty,         pursuant    to   a

plea    agreement,     to   one    count    of     conspiracy        to    possess     with

intent to distribute at least fifty grams of cocaine base in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2006).                            The district

court sentenced Forney to 180 months in prison followed by five

years    of     supervised        release       and    levied        a    $100    special

assessment.

              On appeal, Forney’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), in which she states

that she could find no meritorious issues for appeal.                                In her

Anders    brief,     counsel      calls     four      issues    to       our   attention.

Forney was then appointed new counsel, who, with leave, filed a

supplemental brief setting forth two additional issues.                              Forney

himself then filed a pro se supplemental brief outlining six

issues for our review.             The Government elected not to file a

response.       Our appraisal of the issues brought before us, as

well as the record as a whole, discloses no meritorious claims

to relief.      We therefore affirm.

              Several of Forney’s claims were broadly stated without

specific support in the facts or in the record.                             These claims

merit only passing mention.               Our review of the record leads us

to conclude that the district court complied with Federal Rule

of Criminal Procedure 11 in accepting Forney’s plea, which was

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knowing and voluntary.             We have located no conclusive instances

of     ineffective        assistance     of       counsel       cognizable          on     direct

review.     Likewise, we have found no prosecutorial misconduct or

breach of the plea agreement on the part of the Government.                                    The

record squarely rebuts Forney’s claim that the district court

denied him an opportunity to allocute.                       Forney’s claims with an

arguable basis in fact or in law are addressed below.

            This     court      reviews       a    sentence          under    a    deferential

abuse-of-discretion standard.                 Gall v. United States, 552 U.S.

38, 51 (2007).            The first step in this review requires us to

inspect    for     procedural         reasonableness            by    ensuring          that   the

district court committed no significant procedural errors, such

as improperly calculating the Guidelines range or failing to

consider     the     18     U.S.C.     § 3553(a)          (2006)       factors.           United

States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).                                       We

then    consider     the    substantive           reasonableness         of       the    sentence

imposed, taking into account the totality of the circumstances.

Gall, 552 U.S. at 51.            We shall presume that a sentence within a

properly-calculated            Guidelines         range    is        reasonable.           United

States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).

            Forney        alleges      that       the    district       court       improperly

assigned     him     a     three      offense        level       enhancement            for    his

managerial       role     in    the    offense          under    the     U.S.       Sentencing

Guidelines Manual § 3B1.1(b) (2008).                         In assessing whether a

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sentencing court properly applied the Guidelines, we review the

district court’s factual findings for clear error and its legal

conclusions de novo.            United States v. Chacon, 533 F.3d 250, 253

(4th   Cir.     2008).      Based    on    the      factual    information      in   the

presentence        investigation      report,          which     by    the    parties’

stipulation formed the factual basis for Forney’s conviction, we

find     that     the   managerial     enhancement         was    warranted.         The

evidence before the court supported a finding that Forney had at

least five drug dealers working below him.                     Thus, Forney’s claim

that the court improperly calculated his offense level lacks

merit.

              Forney     also    challenges      the    Government’s     failure      to

file an amended 21 U.S.C. § 851 (2006) information after the

parties agreed that one of the two notices of Forney’s prior

felony     drug     convictions     would      be      withdrawn.       The     parties

reflected their agreement by an addendum to the plea agreement,

but the actual § 851 information was never revised.                      Forney does

not dispute that the district court properly considered only one

previous    conviction      in    fixing    his      sentence.        Rather,    Forney

claims that he was prejudiced because he lacked notice as to

which conviction the Government withdrew.                     Forney, however, does

not claim that either of the previous convictions are invalid.

Given his notice of the two previous convictions set forth in



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the Government’s original § 851 information, we do not find that

Forney suffered any prejudice.

           Our review of the record did reveal a failure by the

district court to inquire of Forney as to whether he affirmed or

denied his previous felony drug convictions as required by 21

U.S.C. § 851(b).     Even if properly questioned, however, Forney

would have been unable to challenge the validity of his previous

convictions   because   the   convictions   occurred    more    than   five

years before the filing of the information.        21 U.S.C. § 851(e).

The district court’s error was, therefore, harmless.           See United

States   v.   Henderson,   613   F.3d   1177,   1185   (8th    Cir.    2010)

(finding district court’s failure to inquire about convictions

that were more than five years old to be harmless error), cert.

denied, 131 S. Ct. 2151 (2011); United States v. Baugham, 613

F.3d 291, 296 (D.C. Cir. 2010) (same), cert. denied, 131 S. Ct.

1510 (2011); United States v. Hill, 142 F.3d 305, 313 (6th Cir.

1998) (same); United States v. Nanez, 694 F.2d 405, 413 (5th

Cir. 1982) (“Neither the enhancement statute nor reason requires

a trial court to adhere to the rituals of § 851(b) where a

defendant, as a matter of law, is precluded from attacking the

conviction forming the basis of the enhancement information.”).

           Forney seeks resentencing under the provisions of the

Fair Sentencing Act of 2010, Pub. L. No. 111-220, claiming it



                                    5
may    be    applied    retroactively. *            We   recently      foreclosed          this

argument for offenders, like Forney, who were sentenced before

the    effective       date    of   the    Act.      United         States    v.    Bullard,

      F.3d      , No. 09-5214, 2011 WL 1718894 at *9-11 (4th Cir.

May 6, 2011) (“We agree with all eight circuits that have ruled

on    the    issue    that    the   FSA    contains      no    express       statement      of

retroactivity,         nor    can   any   such    intent      be     inferred       from    its

language.”).

              Forney similarly points to a post-sentencing amendment

to the Guidelines as a basis for vacation of his sentence.                                 “In

general, a sentencing court is obliged to ‘use the Guidelines

Manual in effect on the date that the defendant is sentenced.’”

United States v. Rooks, 596 F.3d 204, 213 (4th Cir.) (quoting

USSG § 1B1.11(a)), cert. denied, 131 S. Ct. 148 (2010).                                  We do

not   find    that     amendment       742,   the    elimination        of    the       recency

enhancement          from     § USSG      § 4A1.1(e),         was     meant        to     apply

retroactively.         Therefore, no resentencing is warranted.




       *
       We acknowledge the Attorney General’s recent decision with
respect to the Fair Sentencing Act (FSA), conceding that the FSA
is retroactively applicable to all cases where the sentencing
occurred after August 3, 2010, even when the offense conduct,
and the conviction occurred prior to August 3, 2010.

     Mr. Forney’s sentence occurred on January 22, 2010, and
thus, the Attorney General’s decision is not applicable in this
case.



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            In accordance with Anders, we have reviewed the record

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

We   therefore   affirm   Forney’s   conviction        and    sentence.       This

court requires that counsel inform Forney, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Forney 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 Forney.

            We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented         in   the    materials

before   the   court    and   argument   would   not    aid       the   decisional

process.



                                                                          AFFIRMED




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