United States v. Parks ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CARLOS ANDREAS PARKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-99-11-V)
Submitted: June 9, 2004 Decided: October 27, 2004
Before LUTTIG and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, Charlotte, North Carolina, for Appellant.
Robert J. Conrad, Jr., United States Attorney, Gretchen C. F.
Shappert, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Carlos Andreas Parks appeals from the amended judgment of
the district court convicting him of conspiring to possess with the
intent to distribute cocaine, cocaine base, and marijuana, and
sentencing him to 360 months’ imprisonment. In his appeal, filed
pursuant to Anders v. California, 386 U.S. 738 (1967), counsel for
Parks claims that the district court erred in (1) sentencing Parks
in violation of the tenets of Apprendi v. New Jersey, 530 U.S. 466(2000), and (2) denying his motion for a downward departure.
Because Parks failed to object to the district court’s
imposition of an enhanced sentence based on the indictment’s
failure to specify drug quantity, we review for plain error. See
United States v. Olano, 507 U.S. 725, 732-34 (1993). The
Government concedes that the sentence was erroneous because the
indictment failed to include an allegation related to drug
quantity. However, we will exercise our discretion to notice plain
error only where the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Olano,
507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157,
160 (1936)). In this case, Parks stipulated to the relevant drug
quantities at sentencing, so there was independent and
uncontroverted evidence establishing the threshold drug quantity to
support an enhanced sentence. See United States v. Cotton, 535
U.S. 625, 633 (2002) (holding where the evidence of the necessary
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drug quantity was overwhelming and essentially uncontradicted,
there was no basis to conclude the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings).
Accordingly, we deny relief on this claim.
Parks next claims that the district court abused its
discretion by failing to grant a downward departure based on the
Government’s failure to move for a reduction in sentence pursuant
to Fed. R. Crim. P. 35(b). Under U.S. Sentencing Guidelines Manual
§ 5K2.0 (1998), a sentencing court may depart downward for an
aggravating or mitigating circumstance not adequately taken into
account under the guidelines. See USSG § 5K2.0, p.s. Parks
believes that the Government’s failure to provide him an
opportunity to cooperate constitutes a mitigating circumstance.
However, our review of the record contradicts Parks’ understanding.
The Government’s failure to reward Parks with a Rule 35(b) motion
was based on its perception of his perjury and his general lack of
cooperation, not on an unfounded desire of the Government to
preclude his cooperation. Accordingly, we conclude that the
district court did not abuse its discretion in denying a downward
departure.
In his pro se supplemental brief, Parks also claims that
the district court erred in enhancing his sentence for possession
of a firearm and for his role in the offense. See U.S. Sentencing
Guidelines Manual §§ 2D1.1(b)(1), 3B1.1(c) (1998). Neither of
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these claims was preserved in the district court. Accordingly,
they are reviewed for plain error. United States v. Ford, 88 F.3d
1350, 1355 (4th Cir. 1996). Our review of the uncontradicted facts
considered by the district court finds no support for either of
Parks’ supplemental claims. To the contrary, both of the
enhancements are well supported by the presentence investigation
report, as adopted by the district court. Accordingly, we deny
relief on these claims.
Finding no meritorious issues upon our review of the
record, we affirm the judgment of the district court. 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 deny Parks’ motion to substitute
counsel. 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
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