United States v. Powell ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4196
FLOYD JUNIOR "DICK" POWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-99-12)
Submitted: January 15, 2002
Decided: March 28, 2002
Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Patrick McLoughlin, Jr., MOORE & VAN ALLEN, P.L.L.C.,
Charlotte, North Carolina, for Appellant. Robert J. Conrad, Jr., United
States Attorney, Gretchen C.F. Shappert, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. POWELL
OPINION
PER CURIAM:
Floyd Junior "Dick" Powell was charged in three counts of an
eight-count indictment. In Count 1, Powell was charged with conspir-
acy to possess with intent to distribute cocaine and cocaine base in
violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999). In Count 7,
he was charged with possession with intent to distribute cocaine base
and aiding and abetting others in violation of 21 U.S.C.A. § 841(a)(1)
and 18 U.S.C.A. § 2 (West 2000). Count 8 contained a forfeiture alle-
gation against Powell under 21 U.S.C.A. § 853 (West 1999 & Supp.
2001). Following a jury trial, Powell was convicted of all three
counts. Based on the jury’s findings, the district court entered a forfei-
ture order condemning Powell’s residence and $100,000 in currency
Powell received from the sale of drugs during the conspiracy. Powell
was sentenced to 240 months in prison and three years of supervised
release. Powell alleges numerous errors in his sentencing based on
Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm Powell’s
conviction and sentence.
First, Powell argues his 240-month sentence was unconstitutional
in light of Apprendi because the district court made factual findings
by the preponderance of the evidence at sentencing that increased his
sentencing range under the U.S. Sentencing Guidelines Manual
(1998). Because his sentence is not above the statutory maximum in
§ 841(b)(1)(C), his sentence does not implicate Apprendi. See United
States v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), petition for
cert. filed, No. 01-6298 (Sept. 20, 2001); United States v. Dinnall,
269 F.3d 418, 423-24 (4th Cir. 2001). Moreover, judicial factfinding
at sentencing under the Guidelines is not affected by Apprendi as long
as the factfinding does not enhance the sentence beyond the maxi-
mum sentence in the substantive statute. United States v. Kinter, 245
F.3d 192, 201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001).
Second, Powell argues the district court erred in sentencing him to
240 months in prison. However, because this sentence is not above
the statutory maximum in § 841(b)(1)(C), there is no error.
Third, Powell argues the failure to submit the issue of drug type to
the jury is unconstitutional under Apprendi and violates United States
UNITED STATES v. POWELL 3
v. Quicksey, 525 F.2d 337 (4th Cir. 1975). Because Powell did not
raise this argument before the district court, we review the sentence
for plain error. See United States v. Olano, 507 U.S. 725, 731-32
(1993). We "may notice an error not preserved by a timely objection
only if the defendant establishes ‘that error occurred, that the error
was plain, and that the error affected his substantial rights.’" Dinnall,
269 F.3d at 423 (quoting United States v. Hastings, 134 F.3d 235, 239
(4th Cir. 1998)). Correction of the error remains in the discretion of
the court. Id. at 424. Failure to submit the issue of drug type to the
jury does not affect a defendant’s substantial rights. United States v.
Strickland, 245 F.3d 368, 380 (4th Cir.), cert. denied, 122 S. Ct. 294(2001). Therefore, we reject Powell’s argument that the drug type
should have been submitted to the jury.
Fourth, Powell argues sentencing enhancements under the Guide-
lines relating to possession of a dangerous weapon and being a super-
visor of a conspiracy violate Apprendi. The district court, however,
is permitted to make these determinations by a preponderance of evi-
dence. See Kinter, 235 F.3d at 201.
Fifth, Powell argues the forfeiture order was in violation of law.
Forfeiture, however, is not an independent offense, but is only part of
the sentence imposed for the underlying drug offense. Libretti v.
United States, 516 U.S. 29, 38-39 (1995). The burden of proof on a
forfeiture count is preponderance of the evidence. United States v.
Tanner, 61 F.3d 231 (4th Cir. 1995). Because forfeiture is a punish-
ment rather than an element of the offense, Apprendi is not impli-
cated. See United States v. Cabeza, 258 F.3d 1256, 1257 (11th Cir.
2001); United States v. Corrado, 227 F.3d 543, 550 (6th Cir. 2000).
Finally, Powell argues § 841 is unconstitutional in light of
Apprendi. We rejected this argument in United States v. McAllister,
272 F.3d 228, 233 (4th Cir. 2001). Accordingly, we affirm Powell’s
conviction and sentence. 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