United States v. Riley , 21 F. App'x 139 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4106
DARRYL GLEN RILEY, a/k/a Kendu,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4150
SANTRA LAVONNE RUCKER,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4204
SANTRA LAVONNE RUCKER,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-98-101)
Submitted: September 28, 2001
Decided: October 22, 2001
Before WIDENER, KING, and GREGORY, Circuit Judges.
2 UNITED STATES v. RILEY
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher F. Cowan, COWAN, NORTH & LAFRATTA, L.L.P.,
Richmond, Virginia; Barbara L. Hartung, Richmond, Virginia, for
Appellants. Kenneth E. Melson, United States Attorney, John S.
Davis, Assistant United States Attorney, Sara E. Flannery, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darryl Glen Riley and Santra Lavonne Rucker were convicted of
numerous counts of possession with intent to distribute cocaine base
"crack." Under Count 1 of the superceding indictment, the Appellants
were also convicted of conspiracy to possess with intent to distribute
fifty grams or more of crack and five or more kilograms of powder
cocaine. This court affirmed all of Riley’s and Rucker’s convictions
and sentences but remanded to the district court to determine whether
their sentences for Count 1 were imposed in accordance with United
States v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on
other grounds, 218 F.3d 310 (4th Cir.) (en banc), and cert. denied,
530 U.S. 1222 (2000).1 See United States v. Riley, No. 99-4079, 99-
1
In Rhynes, the defendants were charged with conspiracy to distribute
or possess with intent to distribute heroin, cocaine, cocaine base, and
marijuana. 196 F.3d at 214. The district court instructed the jury that it
could return a guilty verdict if it found a defendant had conspired to dis-
tribute any of those controlled substances. Id. at 237. Because the jury
returned a general verdict, this court held that the verdict was ambiguous
and that the district court was prohibited "from imposing a sentence in
excess of the statutory maximum for the least-punished object on which
the conspiracy conviction could have been based." Id. at 238-39.
UNITED STATES v. RILEY 3
4101 (4th Cir. May 15, 2000) (unpublished), cert. denied, 531 U.S.
882 (2000).
On remand in the instant case, the district court found that for
Count 1 the jury only was instructed as to whether Riley and Rucker
conspired to possess with intent to distribute fifty grams or more of
crack cocaine. Thus, there was no Rhynes error as the jury could only
have found them guilty for dealing in crack. Accordingly, the district
court again sentenced Riley and Rucker to life sentences for Count 1.
On appeal from their resentencing, Appellants raise several issues.
For the reasons that follow, we affirm.
Riley and Rucker both allege that their convictions and sentences
for Count 1 have been rendered invalid in light of the Supreme
Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), and
related cases.2 This claim fails, however, because Appellants were
sentenced within the statutory maximum for conspiring to possess
with intent to distribute fifty or more grams of crack. See 21 U.S.C.A.
§§ 841(b)(1)(A)(iii), 846 (West 1999 & Supp. 2001). In Apprendi, the
Supreme Court held that "[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." 530 U.S. at 490.
In the instant case, Appellants were indicted for fifty or more
grams of crack and the jury was instructed that they must find that
amount of crack as an element of the offense. Thus, Riley and Rucker
have suffered no harm in light of Apprendi. See United States v. Rich-
ardson, 233 F.3d 223, 231 (4th Cir. 2000) (holding no Apprendi error
where both indictment and jury charge cite to specific drug amounts),
petition for cert. filed, (U.S. Mar. 19, 2001) (No. 00-9234).
Riley and Rucker also disagree with the district court’s application
of certain sentencing enhancements, again alleging they are invalid in
light of Apprendi. This court has rejected such claims. See United
States v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000) (holding that
Apprendi does not affect a judge’s exercise of sentencing discretion
2
Appellants also rely on Richardson v. United States, 526 U.S. 813(1999).
4 UNITED STATES v. RILEY
within a statutory range so long as a defendant’s sentence is not set
beyond the maximum term specified in the substantive statute), cert.
denied, 121 S. Ct. 1393 (2001); United States v. Obi, 239 F.3d 662,
667 (4th Cir. 2001) (sentencing court does not violate Apprendi when
it makes factual findings that result in increased punishment under the
Sentencing Guidelines), petition for cert. filed, (U.S. May 8, 2001)
(No. 00-9833).
Next, Riley and Rucker allege that their other drug distribution
convictions are also invalidated by Apprendi. Because these argu-
ments are beyond the scope of our remand, we decline to address
them in this appeal. See Omni Outdoor Adver., Inc. v. Columbia Out-
door Adver., Inc., 974 F.2d 502, 505-06 (4th Cir. 1992) (noting that
those issues not previously raised in the first appeal will be consid-
ered waived and thus cannot be raised in a subsequent appeal); United
States v. Jackson, 186 F.3d 836, 838 (7th Cir. 1999) (applying the
doctrine in a criminal appeal).
Finally, Rucker alleges that the district court erred by denying her
motion at the resentencing hearing to appoint counsel to assist her in
any subsequent motion filed under 28 U.S.C.A. § 2255 (West Supp.
2001). We do not find that the district court erred in denying the
motion as there is no right to habeas counsel, see Pennsylvania v. Fin-
ley, 481 U.S. 551, 555 (1987), and Rucker has failed to show that the
"interests of justice" require that she be appointed counsel. See 18
U.S.C.A. § 3006A(a)(2) (West 2000); Rule 8(c) of the Rules Govern-
ing Section 2255 Proceedings.
Accordingly, we affirm the district court’s resentencing of Riley
and Rucker for Count 1 of the superceding indictment. We grant
Riley’s motion to file a pro se supplemental brief but find no meritori-
ous issues raised therein. 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