UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4212

TODD FEURTADO, a/k/a Todd

Edwards,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Solomon Blatt, Jr., Senior District Judge.

(CR-95-669)

Submitted: February 17, 1998

Decided: April 13, 1998

Before WIDENER and WILKINS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas C. Manning, MANNING & CROUCH, Raleigh, North Carolina, for Appellant. J. Rene Josey, United States Attorney, Cameron

G. Chandler, Assistant United States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Todd Feurtado pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of

21 U.S.C. § 846 (1994), and was sentenced to ninety-five months'

imprisonment. On appeal, Feurtado contends that the district court:

(1) lost jurisdiction to sentence him in accordance with the plea agreement after the court dismissed the indictment; (2) improperly

amended a previous order; and (3) attributed to him an improper

quantity of cocaine during sentencing. Feurtado's attorney has filed

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

asserting that there are no meritorious issues for appeal. Feurtado did

not file a pro se supplemental brief. We affirm.

Feurtado and several others were indicted for conspiring in the distribution of cocaine in Virginia, South Carolina, New York, and other

states. On February 9, 1996, Feurtado's counsel filed a motion adopting all of Feurtado's co-defendants' motions, which included a

motion to dismiss the indictment due to alleged grand jury irregularities. Feurtado pleaded guilty to the conspiracy charge in accordance

with a plea agreement on February 23, 1996. On March 27, 1996, the

court orally dismissed the indictment without prejudice on the motion

of some co-defendants but Todd Feurtado was not listed among them.

Neither Feurtado nor his counsel was present at this hearing. The

court signed an order on June 10, 1996, to this effect, placing a handwritten notation on the last page which reads: "Nunc pro tunc to

March 27, 1996." This order was entered on June 12, 1996 (J.A. at

68-83), along with a document entitled "order" entered by the clerk's

office at the judge's direction. This "order" specifically states: "Please

note, per a telephone conversation with Judge Blatt on this date, that

this dismissal is only as to those defendants that have not already pled

guilty. Consequently, this action is still pending as to . . . Todd

Feurtado . . . ." (J.A. at 67). A new indictment was returned on April

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3, 1996, naming those defendants who had not pleaded guilty.

Feurtado was not named. He was sentenced in March 1997.

A presentence report was filed for Feurtado which attributed

between 3.5 and 5 kilograms of cocaine to him. Feurtado filed no

objections to the drug amounts stated in the presentence report. In

accordance with the plea agreement, the court sentenced Feurtado to

ninety-five months' imprisonment.

We first address Feurtado's contention that the court was divested

of jurisdiction to sentence him as a result of the order signed on June

10, 1996. We find to the contrary because the order makes clear that

it is not addressing any motion filed by Todd Feurtado. The first sentence of the order states that the "matter comes before the court on

motion of" certain named defendants and Todd Feurtado is not listed

among them. This makes sense because he had already entered a

guilty plea to his indictment. We perceive no need to address whether

by pleading guilty Feurtado waived any claim related to the grand

jury proceedings.

In a similar vein, Feurtado next claims that the court lost jurisdiction to sentence him based on the guilty plea because in its first written order the judge dismissed the indictment against him, and that the

subsequent order, which specifically excludes Feurtado and the others

who pleaded guilty from the order's effect, altered Feurtado's substantial rights. Because we have found that the order signed June 10,

1996, did not affect Feurtado, this claim is simply unavailing.

Lastly, Feurtado alleges that the court attributed an improper quantity of drugs to him during sentencing. The court sentenced Feurtado

to ninety-five months' imprisonment based upon a stipulated drug

amount of 3.5 to 5 kilograms of cocaine powder as stated in the plea

agreement and presentence report. Because Feurtado failed to object

to this quantity at anytime, we may only review this alleged error if

it was a plain error that affected his substantial rights. See Fed. R.

Crim. P. 52(b); see also United States v. Olano , 507 U.S. 725, 731-32

(1993). Feurtado's only argument is that because a co-defendant's

presentence report attributes a lesser quantity of drugs to Feurtado, his

sentence should have been based on that amount. Because the amount

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attributed to Feurtado in another's presentence report may not be

accurate and is not relevant, we find no plain error.

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

this case and find no reversible error. We therefore affirm Feurtado's

conviction and sentence. 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

oral argument would not aid the decisional process.

AFFIRMED

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