United States v. Artice , 26 F. App'x 193 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4741
ERIC TERYLL ARTICE, a/k/a Equan,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-00-66-BR)
Submitted: December 10, 2001
Decided: December 27, 2001
Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Debra C. Graves,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Mary Jude Darrow, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. ARTICE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric Teryll Artice appeals his conviction and sentence for conspir-
acy to distribute and possess with the intent to distribute more than
fifty grams of cocaine base in violation of 21 U.S.C. § 846 (1994).
Finding no reversible error, we affirm.
Artice first claims that the inclusion in the presentence report
("PSR") of information provided during his debriefing violated the
terms of his plea agreement. The plain language of the plea agreement
simply stated that the Government agreed that the protected state-
ments would not be used against Artice in determining the applicable
guideline range. Because Artice concedes that the probation officer
calculated drug quantity for purposes of the guidelines by using
sources independent from his statements, we find that Artice failed to
show by a preponderance of the evidence that the Government
breached the plea agreement. United States v. Dixon, 998 F.2d 228,
230 (4th Cir. 1993) (citing burden of proof); United States v. Connor,
930 F.2d 1073, 1076 (4th Cir. 1991) (same).
Artice next claims that the federal statutes proscribing drug
offenses have been rendered unconstitutional after Apprendi. He also
argues that Apprendi should apply to invalidate the trial court’s appli-
cation of the sentencing guidelines. These arguments are both fore-
closed by our recent caselaw. In United States v. McAllister, ___ F.3d
___, 2001 WL 1387341, *2-*3 (4th Cir. Nov. 8, 2001), we held that
21 U.S.C.A. § 841 (West 1999 & Supp. 2001) is not unconstitutional
in light of Apprendi. Further, we held in United States v. Kinter, 235
F.3d 192, 201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001),
that Apprendi does not apply to judicial factfinding under the guide-
lines as long as the sentence does not exceed the statutory maximum
term set out in the statute. Artice’s sentence of 150 months was
clearly under the twenty year statutory maximum. See United States
UNITED STATES v. ARTICE 3
v. Promise, 255 F.3d 150, 156 (4th Cir.) (en banc) (holding that
twenty years is the statutory maximum where drug quantity is not
found by the jury beyond a reasonable doubt), petition for cert. filed
(Sept. 20, 2001) (No. 01-6398). Accordingly, we find that Artice is
not entitled to relief under Apprendi.
Accordingly, we affirm Artice’s conviction and sentence. We dis-
pense 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