UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4692

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRELL SPENCER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. John T. Copenhaver,

Jr., District Judge. (2:12-cr-00035-1)

Submitted: March 28, 2013 Decided: April 9, 2013

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

John H. Tinney, Jr., THE TINNEY LAW FIRM, PLLC, Charleston, West 

Virginia, for Appellant. Monica D. Coleman, Assistant United 

States Attorney, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Darrell Spencer appeals his 120-month below-Guidelines

sentence imposed after he pled guilty to aiding and abetting the 

distribution of cocaine base, in violation of 21 U.S.C. 

§ 841(a)(1) (2006), and 18 U.S.C. § 2 (2006). On appeal, 

counsel for Spencer filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), asserting there are no 

meritorious issues for appeal but questioning whether the 

district court properly applied the career offender enhancement

in the Sentencing Guidelines. Spencer has not filed a 

supplemental pro se brief, despite notice of his right to do so. 

We affirm.

“A defendant is a career offender if (1) [he] was at 

least eighteen years old at the time [he] committed the instant 

offense . . . ; (2) the instant offense . . . is a felony that 

is . . . a controlled substance offense; and (3) [he] has at 

least two prior felony convictions of . . . a controlled 

substance offense.” U.S. Sentencing Guidelines Manual

§ 4B1.1(a) (2011). “Any prior sentence of imprisonment 

exceeding one year and one month that was imposed within fifteen 

years of the defendant’s commencement of the instant offense 

[and that] . . . , whenever imposed, . . . resulted in the 

defendant being incarcerated during any part of such fifteenyear period [is counted].” Id. § 4A1.2(e); see id. § 4B1.2 
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cmt. n.3 (counting provisions of § 4A1.2 are applicable to 

counting of convictions under § 4B1.1). 

Spencer was convicted of distribution of cocaine base 

in 1990 and was sentenced to sixty months in prison. He was 

placed on supervised release in 1994. His supervised release 

was revoked in January 1996, and Spencer returned to prison 

until October 1997. In 2002, Spencer was convicted of 

conspiracy to distribute cocaine and sentenced to fifteen years 

in prison with ten years suspended. Spencer remained 

incarcerated until June 2007. The drug sale on which Spencer’s 

instant conviction is based occurred on August 18, 2011. Both 

of Spencer’s prior drug felonies resulted in his incarceration 

during the fifteen years prior to the instant offense and, 

accordingly, application of the career offender enhancement was 

proper. Our review of the record leads us to conclude that 

Spencer’s below-Guideline sentence was neither procedurally nor 

substantively unreasonable.

In accordance with Anders, we have reviewed the record 

in this case and have found no meritorious issues for appeal. 

We therefore affirm the district court’s judgment. This court 

requires that counsel inform Spencer, in writing, of the right 

to petition the Supreme Court of the United States for further 

review. If Spencer requests that a petition be filed, but 

counsel believes that such a petition would be frivolous, then 
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counsel may move in this court for leave to withdraw from 

representation. Counsel’s motion must state that a copy thereof 

was served on Spencer.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

AFFIRMED