UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4233

SAMUEL PETE TANNER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-99-62-BO)

Submitted: November 16, 2000

Decided: January 9, 2001

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Thomas B. Murphy, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Samuel Pete Tanner pled guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994), and was sentenced to 100 months’ imprisonment. Tanner’s attorney has filed a

brief in accordance with Anders v. California, 386 U.S. 738 (1967).

Counsel states there are no meritorious grounds for appeal but raises

an issue regarding the court’s denial of Tanner’s motion to dismiss his

indictment. Although Tanner was informed of his right to file a supplemental brief, he has not done so. 

The issue raised by counsel in the Anders brief is that the district

court erred in failing to dismiss the indictment based on Tanner’s lack

of notice that his conduct was criminal. Tanner was arrested after

police stopped his vehicle and found a thirty inch shotgun. Although

he had a 1992 North Carolina conviction for assault with a deadly

weapon, he had received an unconditional discharge from North Carolina. The discharge notice referenced a North Carolina statute prohibiting him from possessing a handgun or sawed-off shotgun, but

permitting possession of a regular shotgun. Tanner argued that he

relied to his detriment on what state authorities informed him about

his ability to possess a regular shotgun under North Carolina law. The

district court denied the motion. Tanner then entered a plea of guilty.

Tanner now asserts that the district court erred in failing to dismiss

his indictment based on his lack of notice of the federal law. However, Tanner pled guilty to the indictment, and he has, thus, waived

any non-jurisdictional challenge to the indictment. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). In order to sustain a challenge to

the court’s jurisdiction, Tanner must establish that the indictment does

not, by any reasonable construction, charge the offense for which he

was convicted. See Hayle v. United States, 815 F.2d 879, 881-82 (2d

Cir. 1987); see also United States v. Broce, 488 U.S. 563, 569 (1989)

(guilty plea forecloses attack on indictment unless, "on the face of the

record," the court had no power to enter the conviction). 

A review of the indictment shows that it clearly stated the elements

of the offense for which Tanner was charged. Conceivably, Tanner

2 UNITED STATES v. TANNER
could have challenged his lack of notice at trial by raising an "entrapment by estoppel" defense, see United States v. Howell, 37 F.3d 1197,

1204 (7th Cir. 1994), or presented evidence of his reliance on his discharge notice. But Tanner made no such evidentiary showings.

Instead, he pled guilty.* Thus, his claim is now foreclosed. 

In accordance with the requirements of Anders, we have examined

the entire record in this case, including the transcripts of the Fed. R.

Crim. P. 11 colloquy and the sentencing hearing, and we find no meritorious issue for appeal. Accordingly, we affirm Tanner’s conviction

and sentence. This court requires that counsel inform his client, in

writing, of his right to petition to 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 addition, with the district court’s approval and the Government’s

consent, Tanner could have preserved his right to appeal the denial of his

motion to dismiss the indictment by entering a conditional guilty plea.

See United States v. Vaughan, 13 F.3d 1186, 1188 n.3 (8th Cir. 1994).

UNITED STATES v. TANNER 3