United States v. Brown , 49 F. App'x 432 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4050
WILLIAM ARTHUR BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-92-270-MU)
Submitted: October 10, 2002
Decided: October 28, 2002
Before WILKINS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Neil I. Jacobs, NEIL I. JACOBS LAW OFFICES, Rockville, Mary-
land, for Appellant. Gretchen C.F. Shappert, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
William Arthur Brown was convicted of one count of engaging in
a criminal enterprise ("CCE") (Count 1), one count of conspiracy to
possess with intent to distribute and for distributing heroin, (Count 2),
and four counts of money laundering (Counts 5, 6, 7 & 10). The court
sentenced Brown to a term of 360 months imprisonment for Counts
1 and 2 and to a term of twenty years each for Counts 5, 6, 7 & 10
to be served concurrently with each other and with his 360-month
sentence.
On appeal, we affirmed all of Brown’s convictions except for his
CCE conviction, which we reversed. United States v. Brown, 202
F.3d 691 (4th Cir. 2000). We remanded the case to the district court
with instructions to resentence Brown regarding his 360-month uni-
tary sentence in light of the fact that his CCE conviction had been
reversed. Id. at 704.
After holding a hearing, the district court resentenced Brown to
360 months of imprisonment for Count 2 and again imposed 240-
month sentences for Counts 5, 6, 7 and 10, to run concurrently to each
other and his 360-month sentence. On appeal, Brown raises several
issues. For the reasons that follow, we affirm his sentence.
First, we do not find that the district court abused its discretion by
declining to appoint Brown new counsel at resentencing. See United
States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994); see also United
States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988) ("A request for
change in counsel cannot be considered justifiable if it proceeds from
a transparent plot to bring about delay.") (citation omitted).
Second, Brown alleges that the district court erred by failing to dis-
miss the indictment against him because drug amounts were not con-
tained in the indictment. Brown relies on the Supreme court’s
decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and this
court’s decision in United States v. Cotton, 261 F.3d 397 (4th Cir.
2001), rev’d, 122 S. Ct. 1781 (2002), for this argument. Brown con-
UNITED STATES v. BROWN 3
cedes in his brief on appeal, however, that we review this claim only
for plain error. Fed. R. Crim. 52(b); United States v. Olano, 507 U.S.
725, 732 (1993). Because the Government gave Brown proper notice
of its intention to seek an enhanced penalty, under 21 U.S.C. § 851(2000), and because Brown was sentenced within the statutory maxi-
mum of thirty years, under 21 U.S.C. § 841(b)(1)(C) (2000),
Apprendi and Cotton provide Brown no relief. Thus, this claim fails.
Third, Brown alleges a violation of double jeopardy for Count 2.
Because his CCE conviction was dismissed, however, he has no
grounds for such an argument. Indeed, this court addressed and dis-
missed this contention in his prior appeal. Brown, 202 F.3d at 703.
Next, Brown alleges that he was sentenced in excess of the statu-
tory maximum for Count 2. For the reasons previously discussed, this
claim is without merit. To the extent that Brown alleges the Govern-
ment’s § 851 notice was insufficient, this issue is foreclosed by the
mandate rule. See United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993).
Finally, Brown argues that the district court improperly held him
responsible for 3.6 kilograms of heroin. This claim fails, as Brown did
not contest the kind and amount of drugs for which he was held
responsible in his initial appeal, and thus, this court affirmed those
very findings. Brown, 202 F.3d at 703-04. Accordingly, he is barred
from challenging those findings in his subsequent remand and appeal.
Bell, 5 F.3d at 66. To the extent that Brown alleges a violation under
United States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part
on rehearing en banc, 218 F.3d 310 (4th Cir.), and cert. denied, 530
U.S. 1222 (2000), the claim fails, in any event, because cocaine and
heroin have the same maximum penalties.
Accordingly, we affirm Brown’s sentence. We deny Brown’s
motion to reconsider the court’s order granting the Government’s
motion to submit the case on briefs without oral argument. The facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED