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United States v. Watson , 43 F. App'x 696 ( 2002 )


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  •                           UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                              No. 01-4658
JOHN L. WATSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-98-356)
Submitted: August 5, 2002
Decided: August 27, 2002
Before WILKINS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Melisa W. Gay, Mt. Pleasant, South Carolina, for Appellant. J. Strom
Thurmond, Jr., United States Attorney, Robert H. Bickerton, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. WATSON
OPINION
PER CURIAM:
John L. Watson appeals his sentence imposed for conspiracy to
possess with intent to distribute and to distribute cocaine and cocaine
base, in violation of
    21 U.S.C. § 846
     (2000), and two counts of pos-
session with intent to distribute cocaine base in violation of
    21 U.S.C. § 841
    (a)(1) (2000). Finding no reversible error, we affirm.
Watson first claims that the district court erred in imposing a three
level upward adjustment for his role in the offense pursuant to U.S.
Sentencing Guidelines Manual ("USSG") § 3B1.1(b) (1998). A dis-
trict court’s determination of a defendant’s role in the offense is a fac-
tual finding that we review for clear error. United States v. Perkins,
    108 F.3d 512
    , 518 (4th Cir. 1997). At sentencing, the district court
heard testimony from Special Agent Thomas J. Dossett indicating that
Watson was a key participant in a conspiracy to import cocaine from
Nicaragua into the United States between 1993 and 1996. Watson
controlled at least three couriers who would bring the drug into the
United States, and took charge of getting money from the sale of the
drugs back to the sources in Nicaragua. The district court also
received evidence that Watson taught at least two participants in the
conspiracy how to cook powder cocaine into crack. Based on this evi-
dence, we cannot conclude that the district court committed clear
error in imposing an enhancement for Watson’s role in the offense.
Watson next contends that the district court erred in denying his
motion for a reduction of sentence based on his alien status, and his
employment history and family ties. A sentencing court’s decision not
to depart is not reviewable unless the court’s decision is based on a
mistaken view that it lacks authority to do so. United States v.
Edwards,
    188 F.3d 230
    , 238 (4th Cir. 1999), cert. denied,
    528 U.S. 1130
     (2000); United States v. Bayerle,
    898 F.2d 28
    , 31 (4th Cir.
1990). Review is not available if the district court decides the facts
and circumstances of the case do not warrant departure. United States
v. Brock,
    108 F.3d 31
    , 33 (4th Cir. 1997). We find the district court
recognized its authority to grant Watson’s motion, but declined to do
so under the circumstances. Therefore, we find that this claim is not
subject to appellate review.
UNITED STATES v. WATSON                       3
Finally, Watson contends that his sentence was imposed in viola-
tion of Apprendi v. New Jersey,
    530 U.S. 466
     (2000), because drug
quantity was not charged in the indictment or determined by the jury
beyond a reasonable doubt. Because Watson did not raise the issue
below, this court reviews his claim for plain error. Fed. R. Crim. P.
52(b); United States v. Olano,
    507 U.S. 725
    , 731-32 (1993). We find
that Apprendi is not implicated because both Watson’s initial sentence
of 235 months and his reduced sentence of 120 months are below the
240-month statutory maximum set forth in
    21 U.S.C. § 841
    (b)(1)(C)
(2000). See United States v. Promise,
    255 F.3d 150
    , 160 (4th Cir.
2001) (en banc) (holding that the statutory maximum is twenty years
when drug quantity is not charged as an element of the offense and
found by the jury beyond a reasonable doubt), cert. denied,
    122 S. Ct. 2296
     (2002); United States v. Angle,
    254 F.3d 514
    , 518 (4th Cir.) (en
banc) (same), cert. denied,
    122 S. Ct. 309
     (2001).
Accordingly, we affirm Watson’s convictions and sentence. 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