UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4692

FREDERICK KEITH SINGLETON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CR-95-179-A)

Submitted: July 28, 1998

Decided: August 13, 1998

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for

Appellant. Helen F. Fahey, United States Attorney, Robert C. Chesnut, Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Frederick Keith Singleton was convicted of car jacking, three

armored car robberies, and a number of firearms offenses. He was

originally sentenced as a career offender to a term of 210 months,

with a consecutive sentence of 65 years (780 months) for four convictions under 18 U.S.C.A. § 924(c) (West Supp. 1998), making a total

of 990 months. On appeal, the convictions were affirmed, but the

career offender sentence was vacated and the case remanded for

resentencing. See United States v. Singleton, 107 F.3d 1091 (4th Cir.),

cert. denied, ___ U.S. ___, 66 U.S.L.W. 3255 (U.S. Oct. 6, 1997)

(No. 96-8580).

On remand, the government conceded that Singleton was not a

career offender. The new guideline range was 151-188 months. Both

Singleton and the government recommended a sentence of 151

months, which, with the consecutive firearms sentences, would have

produced a total sentence of 931 months. The district court imposed

a sentence of 151 months on Counts 7, 13, and 17 (the armored car

robberies). However, the court reimposed the statutory maximum sentence of 180-months on Count 1 (the car jacking), thus producing a

total sentence of 960 months.

Singleton's attorney has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), raising one issue but stating that in

his view there are no meritorious issues for appeal. Singleton has filed

a pro se supplemental brief attacking his convictions on two grounds.

After a review of the record, we affirm.

In the Anders brief, Singleton's attorney speculates that the district

court may not have been aware that it could sentence Singleton to 151

months on Count 1 because counsel did not specifically ask for a sentence of 151 months on that count. However, both defense counsel

and the government recommended a sentence of 151 months on all

the counts which did not carry mandatory consecutive sentences.

Although the district court did not explain its reason for imposing the

180-month sentence on Count 1, we find no error because the court

had complete discretion to impose sentence at any point within the

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guideline range. See United States v. Holmes, 60 F.3d 1134, 1137 (4th

Cir. 1995) (district court's decision on where to impose sentence

within correctly calculated guideline range not reviewable unless

based on unconstitutional classification).

In his pro se supplemental brief, Singleton asks this Court to

review two new trial issues. He first seeks plain error review of the

sufficiency of the government's proof on the majority of charges for

which he was convicted. With regard to the felon-in-possession

counts, he alleges that the government failed to prove the interstate

commerce element and failed to prove that he had a prior felony conviction. With regard to the car jacking count and the § 924(c) counts,

he alleges that the government failed to prove that the weapon used

was a firearm. Second, Singleton claims that the district court erred

in instructing the jury that he had stipulated to the prior felony and

interstate commerce elements for the felon-in-possession counts. Singleton attempted to raise these issues at the resentencing hearing, but

the district court properly advised him to pursue them in a motion

filed under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998). See

United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993) (issues foregone on appeal may not be relitigated). Because none of these issues

were raised in the first appeal, they have been forfeited.

In accordance with Anders, we have examined the entire record in

this case and find no reversible error. We therefore affirm the sentence imposed on remand. We do not address the validity of Singleton's conviction, and we deny his motion for new counsel. 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 record and briefs, and oral argument would not aid the decisional process.

AFFIRMED

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