UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4691

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MELVIN B. WELLS, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Rebecca Beach Smith, District

Judge. (CR-04-69)

Submitted: January 28, 2005 Decided: March 24, 2005

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frank W. Dunham, Jr., Federal Public Defender, Riley H. Ross, III,

Assistant Federal Public Defender, Norfolk, Virginia, for

Appellant. Paul J. McNulty, United States Attorney, Michael J.

Elston, Assistant United States Attorney, Kurt G. Larkin, Special

Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
*

Wells consented to be tried without a jury before the

magistrate judge.

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PER CURIAM:

Melvin B. Wells, Jr., consented to be tried before a

magistrate judge on a criminal information charging him with: Count

1, disorderly conduct in a public place, in violation of 18 U.S.C.

§§ 7 & 13 (2000), assimilating Va. Code Ann. § 18.2-415 (Lexis

2004); Count 2, obstructing justice in violation of 18 U.S.C. §§ 7

& 13, assimilating Va. Code Ann. § 18.2-460 (Lexis 2004); Count 3,

resisting arrest, in violation of 18 U.S.C. §§ 7 & 13, assimilating

Va. Code Ann. § 18.2-479 (Lexis 2004); and Count 4, failing to stop

for a posted sign, in violation of 18 U.S.C. §§ 7 & 13,

assimilating Va. Code Ann. § 46.2-821 (Lexis 2002). Following a

bench trial, the magistrate judge* found Wells not guilty of Count

2 but found him guilty of the other charges. Wells was sentenced

to one year of probation, fined $275, and given a special

assessment of $55. The district court affirmed Wells’ convictions

on appeal. 

On appeal to this court, counsel has filed a brief under

Anders v. California, 386 U.S. 738 (1967), alleging that there are

no meritorious claims on appeal but raising the following issues:

(1) that the district court erred by denying a motion for a

continuance; (2) there was insufficient evidence to support the

conviction for resisting arrest; and (3) that Wells’ resisting
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arrest conviction should have been dismissed because he was found

not guilty of obstruction of justice. For the reasons that follow,

we affirm.

First, we do not find the district court abused its

discretion by denying Wells’ motion for a continuance on the day of

trial. Morris v. Slappy, 461 U.S. 1, 11-12 (1983). In particular,

Wells failed to show that he was prejudiced by the denial of his

motion. Hill v. Ozmint, 339 F.3d 187, 196-97 (4th Cir. 2003).

Second, viewing the evidence as required, we find that any rational

trier of fact could have found Wells guilty of Count 3, resisting

arrest under the applicable Virginia statute for escape.

Glasser v. United States, 315 U.S. 60, 80 (1942). Finally, we find

no merit to Wells’ claim that because he was found not guilty of

Count 2 his charge for Count 3 should have been dismissed.

We have examined the entire record in this case in

accordance with the requirements of Anders, and find no meritorious

issues for appeal. Accordingly, we affirm. 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
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 

AFFIRMED