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United States v. Berry , 27 F. App'x 190 ( 2001 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.
           No. 01-4053
THOMAS S. BERRY, a/k/a Edward
Quinones,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-00-120-BO)
Submitted: September 28, 2001
Decided: December 17, 2001
Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Christine Witcover Dean,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
2                       UNITED STATES v. BERRY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Thomas Berry pleaded guilty to one count of possession with intent
to distribute 486.2 grams of crack, in violation of
    21 U.S.C.A. § 841
    (a)(1) (West 1999). The district court sentenced Berry to 168
months in prison. Berry timely appealed, arguing that § 841 is uncon-
stitutional. Berry’s argument is that Congress intended the penalty
provisions of
    21 U.S.C.A. § 841
    (b) to be sentencing factors, so that
a judge could determine the drug quantities attributable to a defendant
by a preponderance of the evidence. Berry notes the holding in
Apprendi v. New Jersey,
    530 U.S. 466
     (2000), that, other than the fact
of a prior conviction, any fact that increases the penalty for a crime
beyond the statutory maximum must be determined by the factfinder
beyond a reasonable doubt. Based on Apprendi, Berry contends that
§ 841 has been void and therefore unconstitutional since its enactment
with respect both to the acts deemed unlawful and to the penalties
applicable to those unlawful acts.
We affirm Berry’s conviction.1 In United States v. Cernobyl,
    255 F.3d 1215
     (10th Cir. 2001), the Tenth Circuit recently rejected an
argument virtually identical to Berry’s. The Tenth Circuit’s holding
is consistent with the findings of other Circuits. See United States v.
Martinez,
    253 F.3d 251
    , 256 n.6 (6th Cir. 2001); United States v.
Brough,
    243 F.3d 1078
    , 1080 (7th Cir. 2001), petition for cert. filed,
1
The United States argues that, because Berry waived his appellate
rights in his plea agreement, he waived his right to bring this appeal.
Because Berry contends that he was convicted under an unconstitutional
statute, the waiver provision does not preclude his bringing this appeal.
See Menna v. New York,
    423 U.S. 61
    , 62-63 n.2 (1975); Tollett v. Hen-
derson,
    411 U.S. 258
    , 267 (1973); United States v. Richards,
    204 F.3d 177
    , 191 (5th Cir.), cert. denied,
    531 U.S. 826
     (2000) (holding that a
defendant may not waive his right to appeal a jurisdictional issue).
UNITED STATES v. BERRY                         3
    70 U.S.L.W. 3076
     (July 17, 2001) (No. 01-89). We agree with our
sister Circuits that Berry’s argument lacks merit.2
We therefore affirm. 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
2
Additionally, because Berry’s 168-month sentence is less than the
maximum sentence permitted by
    21 U.S.C.A. § 841
    (b)(1)(C), there was
no Apprendi violation in this case. See United States v. Angle,
    254 F.3d 514
    , 518 (4th Cir. 2001) (en banc).