United States v. Jamison ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4865
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RODRICKUS ANTONIO JAMISON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:05-cr-00025-jlk)
Submitted: June 20, 2007 Decided: July 10, 2007
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John Ian Davey, Danville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Ronald Andrew Bassford, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodrickus Antonio Jamison was originally charged in a
four count indictment with various drug offenses. Pursuant to a
plea agreement, Jamison pled guilty to one count of possession with
intent to distribute and distribution of more than five grams of
crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (1999) and
(b)(1)(B) (1999).
On July 31, 2006, Jamison appeared for sentencing. Due
to two prior drug distribution convictions, Jamison was classified
as a Career Offender under § 4B1.1 of the sentencing guidelines.
Jamison’s advisory guidelines range recommended a sentence of 188
to 235 months imprisonment. The district court imposed a sentence
of 188 months, and Jamison timely noted his appeal. On appeal,
Jamison has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967). Finding no error, we affirm.
On appeal, Jamison alleges three errors in the court
below. First, Jamison alleges that the district court wrongly
enhanced his sentence. Jamison argues that his sentence violates
Blakely v. Washington, 542 U.S. 296 (2004), because his sentence
was enhanced based on his criminal history, which was never
admitted by him or found by a fact-finder beyond a reasonable
doubt. Jamison also contends that his enhancement as a Career
Offender violates the spirit of his plea agreement because, in his
plea agreement, the Government agreed not to file a notice of
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enhancement under 21 U.S.C. § 851 (1999). According to Jamison,
his plea agreement mentioned nothing about a Career Offender
enhancement under § 4B1.1, and therefore, he “was never afforded
the information necessary to make an intelligent choice as to
whether to accept the plea or go to a jury trial.”
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court held that “other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Jamison
was subject to a statutory maximum sentence of forty years. See 21
U.S.C. § 841(b)(1)(B). Thus, the district court’s use of Jamison’s
criminal history in determining his advisory guidelines range and
imposing a sentence of 188 months did not violate Blakely.
Moreover, Jamison’s sentencing enhancement for being a Career
Offender under § 4B1.1 did not violate the spirit of his plea
agreement because 21 U.S.C. § 851 does not apply to enhancements
under the guidelines. See United States v. Foster, 68 F.3d 86, 89
(4th Cir. 1995). Also, Jamison’s assertion that his plea agreement
did not warn him of a possible § 4B1.1 enhancement is contradicted
by paragraph six of his agreement, which states “because of my
prior criminal record I may be treated as a Career Offender under
the Guideline Section 4B1.1.” Accordingly, Jamison’s first
argument is without merit.
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Jamison’s second argument on appeal is that the
Government improperly refused to move for a § 5K1.1 reduction of
his sentence. Pursuant to the plain language of the plea
agreement, the Government retained sole discretion whether it would
file a motion for substantial assistance. When the Government has
not promised to request a substantial assistance departure in
return for a defendant’s substantial assistance, a court may review
the prosecutor’s decision not to move for a departure only “if the
refusal is based on an unconstitutional motive, such as race or
religion, or is not rationally related to a permissible government
objective.” United States v. LeRose, 219 F.3d 335, 341-42 (4th
Cir. 2000)(citing Wade v. United States, 504 U.S. 181, 185-86
(1992)). Before the court may inquire into the Government’s
reasons for refusing to file a § 5K1.1 motion, a defendant must
make a “substantial threshold showing” of impropriety. Id. at 342
(citing Wade, 504 U.S. at 186). Jamison fails to make such a
showing. The record makes clear that the Government refused to
move for a reduction because the information provided by Jamison
did not have the potential to lead to a case against anyone else.
Accordingly, Jamison’s second alleged error is rejected.
Jamison’s third and final alleged error is that he was
sentenced in conflict with Shepard v. United States, 544 U.S. 13
(2005). According to Jamison, the Supreme Court in Shepard held
that, because the Armed Career Criminal Act, 18 U.S.C.A. § 924(e)
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(West 2000 and Supp. 2007), raised a defendant’s sentence beyond
the sentence that could have lawfully been imposed by reference to
facts found by the jury or admitted by the defendant, 18 U.S.C.
§ 924(e) violates Apprendi. Jamison argues that this is relevant
to Career Offender Act sentencing because his enhancement was not
based on facts found beyond a reasonable doubt or admitted by him.
Jamison has misread the Shepard case. Moreover, as
mentioned previously, Apprendi held that “other than the fact of a
prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
While Jamison’s guideline range and the sentence imposed upon him
were enhanced because his prior criminal record qualified him as a
Career Offender, the statutory maximum sentence to which Jamison
was subject was not enhanced as a consequence of judicial fact-
finding. Accordingly, Jamison’s third argument is rejected.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Jamison’s conviction and sentence. This court
requires that counsel inform Jamison, in writing, of the right to
petition the Supreme Court of the United States for further review.
If Jamison requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
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this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jamison.
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
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