United States v. Reynolds , 31 F. App'x 293 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4724
APRIL D. REYNOLDS, a/k/a Nettie,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Frederick P. Stamp, Jr., District Judge.
(CR-00-7)
Submitted: March 21, 2002
Decided: March 29, 2002
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Michelle Roman Fox, Elkins, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Sherry L. Muncy, Assistant
United States Attorney, Elkins, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. REYNOLDS
OPINION
PER CURIAM:
April D. Reynolds appeals the sentence of forty-one months
imprisonment she received following her guilty plea to one count of
distribution of crack cocaine, 21 U.S.C.A. § 841(a) (West 1999). We
affirm in part and dismiss in part.
Reynolds first challenges the district court’s decision that she was
not a minor participant in the offense under U.S. Sentencing Guide-
lines Manual § 3B1.2(b) (2000) because she merely acted as a runner.
Although Reynolds may not have been paid by the other conspirators
for her assistance, she obtained crack for an undercover officer and
sold it to him. Because a drug seller in a drug conspiracy does not
have a minor role, see United States v. Brooks, 957 F.2d 1138, 1149
(4th Cir. 1992), the district court did not clearly err in denying her the
adjustment.
Reynolds next argues that the $10 fine she received for a 1995 mis-
demeanor battery conviction should not have been counted in her
criminal history because she was denied the appointment of counsel.
We find that the fine was properly counted. Reynolds retained an
attorney to represent her with respect to the battery charge. Moreover,
even a prior uncounseled misdemeanor conviction may be counted if
it did not result in sentence of imprisonment. See Nichols v. United
States, 511 U.S. 738, 748-49 (1994); USSG § 4A1.2, backg’d (same).
Reynolds further alleges that the two-year delay between the underly-
ing incident and execution of the warrant for her arrest violated her
due process rights. However, a sentence resulting from a prior convic-
tion that has not been ruled constitutionally invalid must be counted.
USSG § 4A1.2, comment. (n.6).
Finally, Reynolds contends that the district court abused its discre-
tion when it denied her motion for a downward departure based on
extraordinary post-offense rehabilitation. Because the court recog-
nized its authority to depart on this ground, its determination that
Reynolds’ rehabilitation was commendable but not extraordinary is
not reviewable on appeal. United States v. Matthews, 209 F.3d 338,
352-53 (4th Cir.), cert. denied, 531 U.S. 910 (2000).
UNITED STATES v. REYNOLDS 3
We therefore affirm the sentence. We dismiss that portion of the
appeal which contests the district court’s decision not to depart. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED IN PART, DISMISSED IN PART