UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-6811

CHRISTOPHER SEABROOK,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Falcon B. Hawkins, Chief District Judge.

(CR-93-215)

Submitted: May 29, 1997

Decided: June 11, 1997

Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam

opinion.

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COUNSEL

Ann Briks Walsh, Assistant Federal Public Defender, Charleston,

South Carolina, for Appellant. Albert Peter Shahid, Jr., SHAHID

LAW OFFICE, L.L.C., Charleston, 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Unpublished opinions are not binding precedent in this circuit.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:

Christopher Seabrook pleaded guilty to possession of a firearm

under 18 U.S.C. § 922(g) (1994). Because he had at least three previous convictions for violent felonies, 18 U.S.C.§ 924(e) (1994) subjected him to imprisonment for not less than fifteen years. On January

12, 1994, the court sentenced him to imprisonment for fifteen years,

a fifty dollar special assessment, and a five year term of supervised

release following incarceration. Seabrook did not appeal his conviction or sentence.

More than a year after his conviction and sentence, Seabrook filed

a motion for modification or reduction of his sentence in the district

court pursuant to 18 U.S.C. § 3582(c) (1994), claiming that he should

be resentenced in light of Amendment 433 to the United States Sentencing Guidelines. See U.S.S.G. App. C, Amendment 433 (1991).

The district court denied the motion, and Seabrook appeals.

On appeal, Seabrook's attorney filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), claiming that the district

court erred in denying the motion for modification and also raising

two issues not raised below.1 Additionally, Seabrook filed a pro se

supplemental brief, challenging the district court's decision and also

raising one additional issue.2 We affirm in part and dismiss in part.

To the extent that Seabrook appeals the district court's denial of his

motion for modification, we find his notice of appeal timely under

Houston v. Lack, 487 U.S. 266 (1988), and affirm the district court's

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1 In his Anders brief, Seabrook claims that his sentence should be

vacated and his conviction overturned because his conviction was a

result of vindictiveness based on his past record and because it was

obtained in violation of Petite v. United States, 361 U.S. 529, 530-31

(1960) (precluding initiation or continuation of federal prosecution following state prosecution based on substantially same act or transaction

unless there is compelling federal interest supporting dual prosecution).

2 Seabrook also contends that the Government, in filing its response to

his motion for reconsideration, procedurally defaulted.

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order. Seabrook claims that because his felon-in-possession charge is

not a violent offense under § 924(e)(1), the district court erred in

denying his motion for modification filed pursuant to § 3582(c)(2).

We find, however, that the district court correctly determined that

§ 3582(c)(2) did not afford Seabrook relief. This provision allows the

court to reconsider a sentence in light of subsequent changes in the

Guidelines which lower sentences. However, Amendment 433, effective in 1991 and included in the list of amendments warranting reductions of sentences in 1992, was in effect at the time of Seabrook's

sentencing in 1994, and thus does not provide a basis for a

§ 3582(c)(2) motion in this case. Furthermore, a review of the record

indicates that the district court properly sentenced Seabrook pursuant

to § 924(e)(1) because it is evident from the presentence report that

Seabrook violated § 922(g) and had at least three previous violent felony convictions.

To the extent that Seabrook attempts to file a direct appeal of his

conviction and sentence, more than a year after entry of judgment of

conviction and sentence, we find that his notice of appeal is untimely.

We therefore dismiss the vindictiveness claim and Petite policy claim

raised in Seabrook's Anders brief and the procedural default claim

raised in his pro se informal brief for lack of jurisdiction. See

Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978)

(quoting United States v. Robinson, 361 U.S. 220, 229 (1960)); see

also Fed. R. App. P. 4.

In accordance with the requirements of Anders , we have examined

the entire record and find no meritorious issues for appeal. Accordingly, the district court's denial of Seabrook's motion to modify or

correct his sentence is affirmed, and Seabrook's additional claims are

dismissed. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for

further review. If the client 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 the client.

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, DISMISSED IN PART

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