United States v. Saddoris ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4144
DARRELL A. SADDORIS, a/k/a Art,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph Robert Goodwin, District Judge.
(CR-99-158)
Argued: February 27, 2002
Decided: July 17, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David O. Schles, STOWERS & ASSOCIATES, Charles-
ton, West Virginia, for Appellant. Monica Kaminski Schwartz, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.
ON BRIEF: Kasey Warner, United States Attorney, Charleston,
West Virginia, for Appellee.
2 UNITED STATES v. SADDORIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darrell A. Saddoris appeals his sentence for conspiracy to distrib-
ute methamphetamine. We affirm.
I.
Saddoris was indicted for conspiracy to distribute methamphet-
amine, see 21 U.S.C.A. § 846 (West 1999), and attempted possession
with the intent to distribute methamphetamine, see 21 U.S.C.A.
§ 841(a)(1) (West 1999). He pled guilty to the conspiracy charge. At
sentencing, the district court found that Saddoris’ offense involved
680.13 grams of a methamphetamine mixture containing approxi-
mately 108 grams of actual methamphetamine.
Although Saddoris cooperated with investigators prior to sentenc-
ing, the Government declined to move for a substantial assistance
reduction. See U.S. Sentencing Guidelines Manual § 5K1.1 (1998).
Saddoris moved for a downward departure that would account for his
assistance notwithstanding the absence of a § 5K1.1 motion. The
court denied the motion, stating, "I understand the discretion I have
. . . to depart downward, but for substantial assistance without the
Government’s motion I will not do so." J.A. 23. The court then
imposed a sentence of 262 months imprisonment.
II.
Saddoris challenges the refusal of the district court to depart down-
ward. This claim affords no basis for relief. When the Government
declines to move for a downward departure based on assistance in
other prosecutions, the district court lacks power to depart from the
guidelines on this basis, subject to exceptions not relevant here. See
United States v. Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus, the
UNITED STATES v. SADDORIS 3
district court could not lawfully have reduced Saddoris’ sentence
below the guideline range in recognition of his assistance to the Gov-
ernment. Moreover, when a court does possess the discretion to depart
downward, its refusal to do so ordinarily is not reviewable. See
United States v. Edwards, 188 F.3d 230, 238 (4th Cir. 1999). Thus,
regardless of whether the court here had the power to depart down-
ward, its refusal to do so is not grounds for reversal.
III.
In addition to the issue raised by Saddoris, we also consider
whether his 262-month sentence should be vacated pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 122
S. Ct. 2296 (2002). The parties agree that the statutory maximum
applicable to Saddoris’ offense was 240 months because the indict-
ment did not specify any quantity of methamphetamine.1 The question
we must consider is whether to correct this unlawful sentence even
though Saddoris has not challenged it.2
This court, like other courts of appeals, has suggested that it has the
power to correct an error sua sponte if it amounts to plain error under
Federal Rule of Criminal Procedure 52(b). See United States v. Chil-
dress, 26 F.3d 498, 502 (4th Cir. 1994); see also, e.g., United States
v. Graham, 275 F.3d 490, 521-22 (6th Cir. 2001), cert. denied, 122
S. Ct. 1625 (2002). This is the same standard that applies to questions
raised on appeal after being forfeited in the district court. Arguably,
we should apply a more exacting standard in light of our general
1
The applicable maximum penalties are set forth in the drug trafficking
statute, 21 U.S.C.A. § 841(b) (West 1999 & Supp. 2002). See 21
U.S.C.A. § 846 (providing that a drug trafficking conspiracy is subject
to the same penalty as the offense intended by the conspiracy). Saddoris
may have been eligible for a 360-month sentence based on prior criminal
convictions, but the parties have not raised this possibility and it is
unnecessary for us to consider it.
2
Saddoris has in fact argued that his sentence is unlawful, but only
after we requested supplemental briefs on this issue. We do not believe
this transforms the claim from one raised sua sponte into one properly
raised by the Appellant.
4 UNITED STATES v. SADDORIS
refusal to consider issues not raised and properly argued in the appel-
lant’s opening brief. See, e.g., McCarver v. Lee, 221 F.3d 583, 588
n.1 (4th Cir. 2000) (declining to consider issues mentioned but not
argued in briefs); Lewis v. INS, 194 F.3d 539, 547 n.9 (4th Cir. 1999)
(declining to consider issue first raised in reply brief).
We need not decide that question, however, because we conclude
that even the ordinary plain error standard would bar relief here. Sad-
doris has never contested that his offense involved far more than 50
grams of methamphetamine, which would render him eligible for a
life sentence. See 21 U.S.C.A. § 841(b)(1)(A) (West 1999). This
uncontroverted evidence precludes us from overturning Saddoris’
sentence. See United States v. Cotton, 122 S. Ct. 1781, 1787 (2002).
IV.
For the foregoing reasons, we affirm Saddoris’ conviction and sen-
tence.
AFFIRMED