                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4172


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LEWIS R. HARDY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Walter D. Kelley, Jr.,
District Judge. (2:07-cr-00120-WDK-JEB-1)


Submitted:    March 27, 2009                 Decided:   April 17, 2009


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Keith Loren Kimball, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant.   D. Monique Broadnax, Special
Assistant  United   States  Attorney,   Norfolk,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Lewis R. Hardy was convicted after a jury trial of

conspiracy        to   possess   with     intent     to    distribute    heroin     and

cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1),

846   (2006);      possession      with   intent     to    distribute    heroin     and

crack, in violation of § 841(a)(1); possession with intent to

distribute heroin and crack within 1000 feet of a school, in

violation of 21 U.S.C. §§ 841(a)(1), 860 (2006); and possession

of a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (2006).                    Hardy was sentenced to

a    total   of    185   months’    imprisonment          and   now   appeals.     His

attorney has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967).            Hardy has filed a pro se supplemental brief. *

We    affirm      Hardy’s    conviction,       but   vacate     the   sentence,    and

remand for resentencing.

               In the Anders brief, counsel first questions whether

the evidence was sufficient to prove that Hardy possessed the

narcotics within 1000 feet of a school.                    A defendant challenging

the sufficiency of the evidence faces a heavy burden.                            United

States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).                            The

       *
       In his pro se brief, Hardy questions the validity of the
indictment and the district court’s refusal of the jury’s
request to review the transcript of four witnesses’ testimony.
We have considered Hardy’s arguments in light of the applicable
legal standards and find the claims to be without merit.



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verdict of a jury must be sustained “if, viewing the evidence in

the   light    most       favorable         to    the     prosecution,        the     verdict     is

supported by substantial evidence.”                        United States v. Smith, 451

F.3d 209, 216 (4th Cir. 2006).                           “[S]ubstantial evidence [i]s

evidence      that    a    reasonable             finder       of   fact     could    accept      as

adequate and sufficient to support a conclusion of a defendant’s

guilt    beyond       a    reasonable             doubt.”           Id.          “Reversal        for

insufficient evidence is reserved for the rare case where the

prosecution’s        failure      is       clear.”         Beidler,        110    F.3d    at     1067

(internal quotation marks and citation omitted).

              We have reviewed the record and find that it contains

sufficient     evidence          to       prove    that     Hardy     possessed       the      drugs

within   1000       feet    of        a    school.         The      proper       measurement      of

distance for purposes of § 860 is a straight line; that is, an

“as the crow flies” measurement.                          See, e.g., United States v.

Henderson, 320 F.3d 92, 103 (1st Cir. 2003).                               In this case, the

distance from the location where Hardy possessed the drugs and

the   school    was       only    450       feet,       well    within     § 860’s       1000-foot

requirement.          Furthermore,            since       Hardy     failed       to   rebut      this

evidence,      the     jury       could          have     reasonably         accepted       it    as

sufficient     to     support         Hardy’s       guilt      on   this     charge      beyond    a

reasonable doubt.            Cf. United States v. Glover, 153 F.3d 749,

755 & n.5 (D.C. Cir. 1998) (finding evidence sufficient where an



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officer         offered    uncontested          testimony      that    he     measured      the

distance himself).

                 Counsel      next     questions      whether     the       district       court

committed plain error in calculating Hardy’s criminal history

category under the guidelines.                     Although this issue is presented

in    an   Anders      brief,     counsel       concludes      that    it    is,    in     fact,

meritorious.           Counsel acknowledges, however, that he failed to

object to the guidelines calculation before the district court.

Because this issue was not raised below, we review for plain

error.      See Fed. R. Crim. P. 52(b); United States v. Olano, 507

U.S. 725, 731-32 (1993).                  To prevail on a claim of unpreserved

error, Hardy must show that error occurred, that it was plain,

and that it affected his substantial rights.                          Olano, 507 U.S. at

732.       Furthermore, this court will not exercise its discretion

to     correct      such      error       unless     it   “seriously        affect[s]       the

fairness,          integrity         or      public       reputation         of      judicial

proceedings.”              Id.    at      732    (internal      quotation          marks     and

citations omitted).

                 In calculating a defendant’s criminal history category

under the guidelines, two points are added for each conviction

for    offenses        that      occurred       prior     to   the    defendant       turning

eighteen that resulted in a period of confinement for more than

sixty days, from which the defendant was released within five

years      of    the   present       offense       conduct.      See    U.S.       Sentencing

                                                 4
Guidelines           Manual       (“USSG”)               § 4A1.2(d)(2)(A)                   (2007).

Furthermore, the guidelines provide that prior sentences are to

be   counted     separately       if     there      are     any       intervening           arrests

between the offenses.            See USSG § 4A1.2(a)(2).                      “If there is no

intervening      arrest,       prior        sentences       are        counted        separately

unless (A) the sentences resulted from offenses contained in the

same charging instrument; or (B) the sentences were imposed on

the same day.”          Id.      If there was no intervening arrest and

either of those conditions is met, the prior sentences are to be

counted    as    a    single     sentence          in    calculating           a     defendant’s

criminal history category.

             In this case, Hardy’s criminal history contained three

separate    juvenile      offenses          that    met     the        criteria       under     the

guidelines      to     receive        two     criminal           history           points     each.

However,     there      were     no    intervening              arrests        between        these

offenses, and Hardy was sentenced for all three on the same day.

Therefore, these sentences should have been counted as a single

prior     sentence.        The     district         court        instead           counted     them

separately, resulting in a total of four criminal history points

being   erroneously       attributed          to    Hardy.             This    increased        his

criminal    history      category       from       III     to    IV     and    increased        his

applicable      guidelines       range      from     eighty-seven             to    108     months’

imprisonment to 100 to 125 months’ imprisonment.                                    We conclude

that    this     constituted          plain        error        that     affected           Hardy’s

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substantial rights and that should be noticed on appeal.                                   See

United States v. Ford, 88 F.3d 1350, 1355-56 (4th Cir. 1996).

             We have examined the entire record in this case in

accordance with the requirements of Anders and have found no

other     meritorious    issues          for    appeal.          We    therefore        affirm

Hardy’s     conviction,       vacate           his   sentence,         and     remand       for

resentencing.       See Gall v. United States, 128 S. Ct. 586, 597

(2007).       We    further        deny        Hardy’s      motion      for     grand      jury

transcripts.       This court requires that counsel inform Hardy, in

writing,    of    the   right      to    petition        the   Supreme        Court   of   the

United States for further review.                        If Hardy 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 Hardy.                          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 IN PART,
                                                     VACATED IN PART, AND REMANDED




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