eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fourth Circuit
 2002-03

United States v. Brown , 38 F. App'x 133 ( 2002 )


Menu:
 
  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                            No. 01-4108
WAYNELY BROWN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-99-75)
Submitted: February 26, 2002
Decided: March 20, 2002
Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Richard A. Culler, CULLER & CULLER, P.A., Charlotte, North Car-
olina, for Appellant. Robert J. Conrad, Jr., United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. BROWN
OPINION
PER CURIAM:
Waynely Wray Brown appeals his jury conviction and sentence for
one count of conspiracy to possess with intent to distribute "a quantity
of cocaine and cocaine base" in violation of
    21 U.S.C.A. § 846
     (West
1999 & Supp. 2001). Following his conviction, the district court sen-
tenced Brown to 240 months of imprisonment pursuant to
    21 U.S.C.A. § 841
    (b)(1)(C) (West 1994 & Supp. 2001). Brown, through
counsel, timely appealed and Brown filed a pro se request for supple-
mental briefing.
Brown first claims his sentence violates the rule of Apprendi v.
New Jersey,
    530 U.S. 466
     (2000), because his indictment lacked the
alleged amount of cocaine and cocaine base as an element of the
offense. Where a defendant is convicted of a drug charge, and his
indictment is silent as to drug quantity, his sentence may not exceed
twenty years incarceration. See United States v. Angle,
    254 F.3d 514
    ,
518 (4th Cir.) (en banc), cert. denied, ___ U.S. ___,
    122 S. Ct. 309
    (2001). Here, the district court properly sentenced Brown to twenty
years incarceration, the maximum term of imprisonment permitted
under § 841(b)(1)(C). Moreover, we find no error in Brown’s sen-
tence under United States v. Rhynes,
    196 F.3d 207
     (4th Cir. 1999),
cert. denied,
    530 U.S. 1222
     (2000).
Brown contests the district court’s denial of his motion for judg-
ment of acquittal. We have carefully reviewed the trial testimony and
find substantial evidence underlying Brown’s conviction and the dis-
trict court’s denial of his motion for judgment of acquittal. See United
States v. Hoyte,
    51 F.3d 1239
    , 1245 (4th Cir. 1995) (setting forth stan-
dard of review).
Next, Brown claims the Assistant United States Attorney trying the
case committed prosecutorial misconduct in his closing by impermiss-
ibly referring to Brown’s decision not to take the witness stand and
testify on his own behalf. We have examined the contested statements
and find Brown’s claims meritless.
UNITED STATES v. BROWN                        3
Brown also avers the court committed two errors in enhancing his
sentence under the Sentencing Guidelines. We review the district
court’s legal interpretations of the Guidelines de novo. See United
States v. Blake,
    81 F.3d 498
    , 503 (4th Cir. 1996). We evaluate the dis-
trict court’s factual findings informing the sentencing decision for
clear error. See
    id.
    Brown first argues the court erroneously enhanced his sentence two
levels for possession of a handgun during the commission of a drug-
trafficking crime pursuant to United States Sentencing Guideline
§ 2D1.1(b)(1). The court based its ruling on trial testimony and the
corresponding findings in the Pre-Sentence Report. Brown presents
no evidence and little argument to support his contention. "The bur-
den is on the defendant to show the inaccuracy or unreliability of the
Pre-Sentence Report." United States v. Terry,
    916 F.2d 157
    , 162 (4th
Cir. 1990). Accordingly, we find the district court’s ruling was
proper.
Lastly, Brown objects to his three level enhancement pursuant to
USSG § 3B1.1(b) for being a manager or supervisor of a five partici-
pant or otherwise extensive conspiracy. The district court’s findings
and rulings of law in imposing this enchantment were likewise
proper.
Accordingly, we affirm Brown’s sentence and conviction. We
grant Brown’s motion to file a pro se supplemental formal brief but
deny his requests for relief as meritless. We dispense with oral argu-
ment, because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED