United States v. McKithen ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4618
LEVESTER MCKITHEN, JR., a/k/a Solo
McKithen,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Patrick Michael Duffy, District Judge.
(CR-99-169)
Submitted: April 27, 2001
Decided: June 1, 2001
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
I. S. Leevy Johnson, William T. Toal, JOHNSON, TOAL & BAT-
TISTE, P.A., Columbia, South Carolina, for Appellant. J. Rene Josey,
United States Attorney, Alfred W. Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee.
2 UNITED STATES v. MCKITHEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Levester McKithen, Jr., was convicted on
one count of conspiracy to possess with intent to distribute cocaine
and cocaine base ("crack"), in violation of 21 U.S.C.A. §§ 841(a)(1),
846 (West 1999) and 18 U.S.C. § 2 (1994), one count of attempted
possession with intent to distribute crack, in violation of 21 U.S.C.A.
§ 846 and 18 U.S.C. § 2, and one count of attempted possession with
intent to distribute cocaine and crack, in violation of 21 U.S.C.A.
§ 846 and 18 U.S.C. § 2. The district court sentenced McKithen to
concurrent 160-month prison terms on each count. McKithen appeals,
claiming that the district court committed errors at a suppression hear-
ing and that his conviction and sentences are illegal under Apprendi
v. New Jersey, 530 U.S. 466 (2000). Finding no merit to his claims,
we affirm.
Shortly after his arrest, McKithen gave a statement to law enforce-
ment officers. He filed a motion to suppress the statement, claiming
that his confession was involuntary. Following a hearing, the court
denied the motion, concluding that McKithen voluntarily gave the
statement. McKithen contends that the district court erred by allowing
the government to question him at the suppression hearing about his
arrest and other matters concerning the alleged crime, which he
argues are not related to the voluntariness of his confession.
A defendant challenging the voluntariness of his confession may be
questioned only concerning the nature of his confession and not about
his guilt or innocence. United States v. Dollard, 780 F.2d 1118, 1122
(4th Cir. 1985); United States v. Inman, 352 F.2d 954, 956 (4th Cir.
1965). In making a voluntariness determination, "the trial judge is
‘duty-bound to ignore implications of reliability . . . and to shut from
his mind any internal evidence of authenticity that a confession itself
might bear.’" Doby v. South Carolina Dep’t of Corrections, 741 F.2d
UNITED STATES v. MCKITHEN 3
76, 78 (4th Cir. 1984) (quoting Lego v. Twomey, 404 U.S. 477, 484
n.12 (1972)).
We recognize that the government’s cross-examination of McKi-
then about the truthfulness of the statements in the confession was
questionable because, as the case law establishes, the truth of a con-
fession is not a factor for a court to consider in determining whether
it was voluntary. Notwithstanding the fact that at times the focus of
the government’s cross-examination was on the accuracy of the con-
fession, the district court demonstrated that it relied on appropriate
factors in concluding that McKithen’s confession was voluntary. Spe-
cifically, the court allowed the government to question McKithen
about his involvement in the crime, explaining that such questioning
was permissible to discredit McKithen’s claim of coercion by show-
ing that the substantial evidence against him and his knowledge that
his co-conspirator had confessed provided motivation for McKithen’s
own confession. Rejecting McKithen’s claims of coercion, the court
concluded that McKithen’s confession was voluntary in light of the
fact that he was advised of his rights and signed and sworn statement
acknowledging that he understood his rights, and evidence that he had
significant motivation to confess. Thus, even if the court should have
sustained McKithen’s objection and not allowed questioning about
the accuracy of the confession, any error was harmless because the
court did not rely on that evidence in reaching its conclusion that
McKithen’s confession was voluntary.
McKithen also argues that his convictions and sentence violate
Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi, any
fact, other than a prior conviction, that increases the maximum pen-
alty for a crime is an element of the offense, and as such, must be
charged in the indictment, submitted to a jury, and proven beyond a
reasonable doubt. McKithen argues that his convictions and sentence
are invalid under Apprendi because his indictment did not allege any
drug quantity and the jury was instructed that it need not find any par-
ticular drug quantity. Every circuit to consider Apprendi in the con-
text of 21 U.S.C.A. § 841(b) has concluded that the statutory
maximum when drug quantity is not treated as an element of the
offense is twenty years. United States v. White, 238 F.3d 537, 542
(4th Cir. 2001) (collecting cases). McKithen’s sentence of 160
months falls well below the 240-month maximum in 21 U.S.C.A.
4 UNITED STATES v. MCKITHEN
§ 841(b)(1)(C), and thus, under the authorities cited in White, does not
implicate Apprendi.
For these reasons, we affirm McKithen’s convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED