United States v. McCollum , 80 F. App'x 825 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4907
WILLIAM MCCOLLUM, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-00-988)
Argued: August 25, 2003
Decided: November 12, 2003
Before WILKINS, Chief Judge, and TRAXLER and
GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: David Bruce Betts, LAW OFFICE OF DAVID B.
BETTS, Columbia, South Carolina, for Appellant. Alfred William
Walker Bethea, Assistant United States Attorney, Florence, South
Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, Florence, South Carolina, for Appellee.
2 UNITED STATES v. MCCOLLUM
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William McCollum, Jr. ("McCollum") pleaded guilty to one count
of possessing with the intent to distribute 50 grams or more of cocaine
base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. During
his sentencing hearing, McCollum raised for the first time an objec-
tion to the quantity of drugs attributed to him in the pre-sentence
report ("PSR"), which the district court rejected. On appeal, McCol-
lum argues that the district court: (1) abused its discretion by refusing
to consider his objection regarding the drug quantity attributable to
him; and (2) violated 18 U.S.C. § 3553(c)(1), by failing to state in
open court its reasons for imposing a 360-month sentence. Finding no
reversible error, we affirm McCollum’s sentence.
I.
In July 2000, the DEA took McCollum into custody in South Caro-
lina and advised him of his rights after observing him attempt to sell
one kilogram of crack cocaine to a DEA informant. In an effort to
cooperate with the government, McCollum identified his drug sup-
plier and agreed to assist in his apprehension by acting as an infor-
mant. Accordingly, the government provided McCollum with
recording equipment and arranged a transaction with McCollum’s
supplier. A few weeks later, however, McCollum disappeared. In
December 2000, the government indicted and charged McCollum
with one count of possessing with the intent to distribute 50 grams or
more of cocaine base.
In April 2002, McCollum was arrested and shortly thereafter
entered a guilty plea on the possession charge. The probation officer
prepared a PSR and later revised the same, incorporating two objec-
tions raised by McCollum.1 At his sentencing hearing, McCollum
1
First, McCollum objected to a two-level enhancement for obstruction
of justice related to his fleeing to New York in 2002. The district court
UNITED STATES v. MCCOLLUM 3
raised, for the first time, an objection to the quantity of drugs attri-
buted to him in the PSR. The district court inquired into whether
McCollum had received the PSR, and having been informed that he
had, refused to consider McCollum’s objection, stating that his objec-
tion "comes too late." The district court then determined that McCol-
lum’s total offense level was 35 and that the guideline sentencing
range was 292-365 months of imprisonment. The district court sen-
tenced McCollum to 360 months of imprisonment but did not provide
an oral statement as to its reasons for imposing this sentence. The
written criminal judgment, however, stated that McCollum’s sentence
"conforms with the U.S. Sentencing Commission Guidelines."
McCollum timely filed this appeal arguing that: (1) the district
court abused its discretion by refusing to consider his objection to the
drug quantity attributed to him; and (2) the district court violated 18
U.S.C. § 3553(c)(1) by failing to announce in open court its specific
reasons for imposing a 360-month sentence.
II.
This Court reviews a district court’s decision of whether to con-
sider untimely objections to the PSR for abuse of discretion. See
United States v. Morsely, 64 F.3d 907, 914 (4th Cir. 1995). Our power
to review sentences is limited to instances in which a sentence is
imposed in violation of the law or imposed as a result of an incorrect
application of the sentencing guidelines. See United States v. Jones,
18 F.3d 1145, 1151 n.4 (4th Cir. 1994); United States v. Greer, 285
F.3d 158, 177 (2d Cir. 2002). McCollum argues that we have the
power to review his sentence because it was imposed in violation of
18 U.S.C. § 3553(c)(1). Because McCollum failed to raise this issue
at sentencing, we review his claim for plain error.
granted this objection. Second, McCollum objected to the PSR’s charac-
terization of his two prior drug convictions as two separate incidents. The
district court denied this objection.
4 UNITED STATES v. MCCOLLUM
III.
It is solely within the discretion of the district court to consider
untimely challenges to the PSR. See Fed. R. Crim. P. 32(i)(1)(D).
Indeed, the district court "may, for good cause, allow a party to make
a new objection . . . ." Id. Here, the district court heard McCollum’s
objection to the drug quantity attributed to him in the PSR, J.A. 78,
and inquired into whether the probation officer had furnished McCol-
lum and his lawyer with a copy of the PSR, which contained informa-
tion related to the drug quantity attributed to McCollum. Id. at 79.
Once the district court determined that McCollum and his lawyer had
received a copy of the PSR and therefore notice of the drug quantity,
it refused to consider the newly raised objection. Id. We find that the
district court did not abuse its discretion in denying this objection.
Contrary to McCollum’s assertions, the district court provided
McCollum the opportunity to proffer a reason as to why his objection
to the drug quantity contained in the PSR should be considered. Hav-
ing concluded that McCollum failed to proffer "good cause" as to its
untimeliness, the district court properly refused to consider McCol-
lum’s objection.2
IV.
Both parties agree that the district court violated 18 U.S.C.
§ 3553(c)(1) by failing to state in open court its reasons for imposing
a 360-month sentence on McCollum. As previously noted, this
Court’s ability to review sentences is limited to instances in which a
sentence is "imposed in violation of law" or "as a result of an incor-
rect application of the sentencing guidelines." 18 U.S.C. § 3742(a)(1-
2). This Court has never directly addressed whether a sentence
2
In any event, the district court’s finding with respect to the quantity
of drugs attributable to McCollum is not clearly erroneous. The PSR
attributed 1,002 grams of cocaine base and 319.5 kilograms of powder
to McCollum for purposes of sentencing. The probation officer derived
this drug quantity from statements McCollum made when he was cooper-
ating with the DEA in July 2000 and from a letter provided by McCol-
lum’s lawyer in which McCollum admitted that he transported 1
kilogram of cocaine base in July 2000. See J.A. 95 (detailing account of
McCollum’s July 2000 drug sale transaction). These statements are suffi-
cient to support the district court’s findings on this point.
UNITED STATES v. MCCOLLUM 5
imposed in violation of § 3553(c)(1) is reviewable as a sentence "im-
posed in violation of law."3 However, we need not resolve this issue
today. Because McCollum failed to request an explanation or object
to the sentence imposed during the sentencing proceedings, this Court
may review the error under the plain error test. See United States v.
Olano, 507 U.S. 725, 731-32 (1993). That is, McCollum’s sentence
may be reversed only if the error is plain and affects his substantial
rights. Even if McCollum overcomes this hurdle, the decision to cor-
rect the error remains in the "sound discretion of the court of appeals,
and the court should not exercise that discretion unless the error ‘seri-
ously affects the fairness, integrity or public reputation of the judicial
proceedings.’" Id. at 732 (internal citation omitted).
Here, the district court relied upon the PSR for its determination of
the sentencing guideline range — 292 to 365 months — applicable to
McCollum. McCollum did not object to the guideline range and the
district court sentenced him to a term of imprisonment within that
range, 360 months. Thus, although the district court erred by failing
to state, in open court, its reasons for this sentence, we conclude that
the error does not seriously affect the fairness and integrity of the
judicial proceedings. We therefore find that the district court did not
commit plain error warranting reversal of McCollum’s sentence.
V.
For the above-mentioned reasons, we find no reversible error. We
therefore affirm McCollum’s sentence.
AFFIRMED
3
In United States v. Jones, 18 F.3d 1145, 1151 n.4 (4th Cir. 1994), this
Court declined to address the reviewability of a sentence imposed in vio-
lation of § 3553(c)(1).