United States v. Anderson , 48 F. App'x 450 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 01-4318
JEVAN ANDERSON,
Defendant-Appellee.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4327
JEVAN ANDERSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-97-34-BO)
Submitted: September 24, 2002
Decided: October 9, 2002
Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
2 UNITED STATES v. ANDERSON
COUNSEL
John Stuart Bruce, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellant.
Vaughan S. Winborne, Jr., Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal and cross-appeal concern Jevan Anderson’s resentenc-
ing following a remand from this court. Anderson was convicted
under 21 U.S.C. § 846 (2000) for conspiracy to distribute and to pos-
sess with intent to distribute crack cocaine. The district court found
that Anderson was responsible for over 1176 grams of crack cocaine
plus over 1056 grams of cocaine, which yielded a base offense level
of 36. Combined with Anderson’s criminal history category of IV, his
guidelines sentencing range was 262 to 327 months. However, based
on Anderson’s 1984 and 1996 drug felony convictions, the court sen-
tenced Anderson to life in prison pursuant to 21 U.S.C.
§ 841(b)(1)(A) (2000). Anderson timely appealed, and this court
affirmed his conviction, but found that Anderson’s 1996 felony con-
viction violated the prohibition against double jeopardy and hence
could not be used to enhance Anderson’s sentence. Therefore, this
court vacated Anderson’s sentence and remanded for resentencing.
Between the remand and resentencing, the Supreme Court of the
United States decided Apprendi v. New Jersey, 530 U.S. 466 (2000)
(holding that except for fact of prior conviction, any fact that
increases penalty beyond statutory maximum must be alleged in
indictment, submitted to jury, and proven beyond reasonable doubt).
The parties conceded at resentencing that because drug quantity had
not been alleged in Anderson’s indictment or presented to the jury, his
UNITED STATES v. ANDERSON 3
sentence could not be enhanced based on drug quantity. Conse-
quently, Anderson’s statutory penalty was governed by 21 U.S.C.
§ 841(b)(1)(C) (2000). The government sought to enhance Ander-
son’s sentence pursuant to 21 U.S.C. § 851 (2000), based on the 1984
felony drug conviction. However, the district court concluded that
Apprendi foreclosed enhancement of Anderson’s sentence based on
the prior conviction and therefore sentenced Anderson to twenty years
in prison, the statutory maximum without enhancement.
The government appealed and Anderson filed a cross-appeal. The
government contends that the district court erred by concluding that,
under Apprendi, it could not enhance Anderson’s sentence based on
his prior felony conviction. In the cross-appeal, Anderson’s attorney
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that, in counsel’s view, there are no meritorious issues for
appeal, but asserting that Anderson would argue that his conviction
and 240-month sentence were illegal because the trial was flawed.
Anderson was advised of his right to file a pro se supplemental brief
but declined to do so.
At resentencing, the district court agreed with Anderson that
Apprendi overruled the holding of Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1988), that prior felony convictions that
trigger enhanced sentences are sentencing enhancements rather than
elements of the offense. However, this court recently expressly held
that Apprendi did not overrule Almendarez-Torres. United States v.
Sterling, 283 F.3d 216, 219-20 (4th Cir.), cert. denied, 122 S. Ct.
2606 (2002). Therefore, Anderson’s maximum statutory penalty is
thirty years under 21 U.S.C. § 841(b)(1)(C)—not twenty years as the
district court concluded.
Anderson argues for the first time on appeal that he was not subject
to an enhanced sentence for his prior felony conviction because the
§ 851 notice cited to the wrong subparagraph of the penalty statute.
Specifically, the information filed by the United States attorney prior
to trial stated that it intended to seek an enhanced penalty under 21
U.S.C. § 841(b)(1)(A). Anderson was originally sentenced under
§ 841(b)(1)(A). At resentencing the parties conceded that, following
Apprendi, Anderson’s sentence could not be enhanced based on drug
quantity. Consequently, his statutory penalty was governed by
4 UNITED STATES v. ANDERSON
§ 841(b)(1)(C) instead of § 841(b)(1)(A). However, the government
never filed a new information under § 851 notifying Anderson of its
intent to seek an enhanced penalty under § 841(b)(1)(C).
As required by § 851, the pretrial notice Anderson received advised
him that he faced an enhanced sentence based on his prior felony con-
viction. Sentencing Anderson under a penalty provision different
from that cited in the information did not deprive him of the opportu-
nity to challenge the use of his prior conviction to enhance his sen-
tence. Consequently, the government was not precluded from seeking
an enhancement for Anderson’s prior conviction. See United States v.
Beal, 279 F.3d 567, 573 (8th Cir. 2002); cf. United States v. Camp-
bell, 980 F.2d 245, 252 (4th Cir. 1992).
In his cross-appeal, Anderson identifies errors allegedly occurring
at his trial and initial sentencing. Under the mandate rule, Anderson
may only raise issues pertaining to his resentencing. See United States
v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). We decline to address claims
that are outside the scope of the order remanding for resentencing.
For these reasons, we vacate Anderson’s sentence and remand for
further proceedings consistent with this opinion. This court requires
that counsel inform his client, in writing, of the client’s right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that such a petition be filed but counsel believes that
it would be frivolous to do so, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. 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.
VACATED AND REMANDED