UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4162

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY RUDOLPH WADE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. Frank W. Bullock, Jr.,

District Judge. (CR-03-264)

Submitted: October 21, 2005 Decided: November 22, 2005

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam

opinion.

Louis C. Allen, III, Federal Public Defender, Gregory Davis,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Anna Mills Wagoner, United States Attorney, Michael

Francis Joseph, Assistant United States Attorney, Angela Hewlett

Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Timothy Rudolph Wade pled guilty to conspiracy to possess

with intent to distribute in excess of 500 grams of cocaine

hydrochloride, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2000), and

possession of counterfeit money, 18 U.S.C. § 472 (2000). The

district court sentenced Wade to 216 months of imprisonment.

Wade’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), stating that there are no meritorious grounds

for appeal, but asserting the following claims: (1) the district

court abused its discretion in denying Wade’s motion to withdraw

his guilty plea; and (2) the district court’s sentence was too

severe. In a supplement, counsel challenges the constitutionality

of Wade’s sentence under Blakely v. Washington, 542 U.S. 296

(2004). Wade has filed a pro se supplemental brief. Finding no

reversible error, we affirm.

A defendant who seeks to withdraw his guilty plea before

sentencing must demonstrate a “fair and just reason” for withdrawal

of the plea. Fed. R. Crim. P. 11(d)(2)(B). A “fair and just”

reason is one that essentially “challenges the fairness of the Fed.

R. Crim. P. 11 proceeding” or “challenges the fulfillment of a

promise or condition emanating from the proceeding.” United States

v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992). A court should

closely scrutinize the Rule 11 colloquy and attach a strong

presumption that the plea is final and binding if the Rule 11
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proceeding is adequate. Id. We review the district court’s denial

of a motion to withdraw a guilty plea for abuse of discretion.

United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). After

reviewing the record, we find that the district court did not abuse

its discretion by finding no “fair and just reason” for the

withdrawal of Wade’s guilty plea.

Wade also alleges that the district court’s sentence was

too severe. Because we find that the district court correctly

calculated the sentencing guideline range and Wade’s sentence was

within the statutory maximum penalty, we decline to review the

district court’s decision to sentence Wade in the middle of the

guideline range. United States v. Porter, 909 F.2d 789, 794 (4th

Cir. 1990). 

Wade further challenges his sentence as a career

offender, see U.S. Sentencing Guidelines Manual § 4B1.1 (2003),

under Blakely and United States v. Booker, 125 S. Ct. 738 (2005).

Specifically, he argues that his sentence was improperly enhanced

based on a prior conviction. Because Wade did not object below,

this claim is reviewed for plain error. United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005). This court has held that, where

the facts are undisputed, the application of the career offender

enhancement falls within the exception for prior convictions.

United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005);

accord United States v. Guevara, 408 F.3d 252, 261 (5th Cir. 2005)
*Furthermore, Wade has failed to demonstrate that the plain

error in sentencing him under a mandatory guideline scheme affected

his substantial rights. See United States v. White, 405 F.3d 208,

223 (4th Cir. 2005). 

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(“Career offender status is not ‘a sentencing judge’s determination

of a fact other than a prior conviction.’ . . . Booker explicitly

excepts from Sixth Amendment analysis the third component of the

crime of violence determination, the fact of two prior

convictions.”); see also United States v. Harp, 406 F.3d 242, 247

(4th Cir. 2005) (finding no plain error in the district court’s

designation of Harp as a career offender), cert. denied, S. Ct.

 , 2005 WL 2011656 (U.S. Oct. 3, 2005) (No. 05-5887).

Accordingly, we find that the district court did not err in

designating Wade as a career offender and that Wade’s sentence does

not violate the Sixth Amendment in this regard.*

We have reviewed Wade’s claims in his supplemental brief

and various supplements and find them without merit. In accordance

with Anders, we have reviewed the entire record in this case and

have found no meritorious issues for appeal. We therefore affirm

Wade’s conviction and sentence. To the extent that Wade challenges

the court’s imposition of a sentence with a properly calculated

guideline range, we dismiss that portion of the appeal. 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
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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