United States v. Purvis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4729
GARRY JERMAINE PURVIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-164)
Submitted: June 15, 2000
Decided: December 10, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
C. Gordon McBride, Hartsville, South Carolina, for Appellant. Wil-
liam Earl Day, II, Assistant United States Attorney, Florence, South
Carolina, for Appellee.
2 UNITED STATES v. PURVIS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Garry Jermaine Purvis pled guilty to conspiracy to possess cocaine
base (crack cocaine), cocaine, and heroin with intent to distribute, see
21 U.S.C. § 846 (1994), between 1995 and 1999. He stipulated in his
plea agreement that he was responsible for at least 1.5 kilograms of
crack. Purvis was sentenced to a term of 292 months imprisonment
and a five-year term of supervised release. He now appeals his con-
viction and sentence. Purvis’ attorney has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), raising one issue but
asserting that, in his view, there are no meritorious grounds for
appeal. Purvis has been notified of his right to file a pro se supple-
mental brief, but has not filed a brief. The parties have filed supple-
mental briefs, as requested by this court, addressing the effect on this
case of Apprendi v. New Jersey, 530 U.S. 466 (2000).
We affirm Purvis’ conviction. However, because his sentence is
plainly erroneous in light of Apprendi, we vacate the sentence and
remand for resentencing. See United States v. Promise, 255 F.3d 150,
154 (4th Cir. 2001) (en banc) (discussing plain error standard of
review), petition for cert. filed, Sept. 20, 2001 (No. 01-6398).
In the Anders brief, Purvis’ attorney questions whether the district
court erred in overruling his objection to the government’s decision
not to move for a substantial assistance departure under U.S. Sentenc-
ing Guidelines Manual § 5K1.1, p.s. (1998). The government
explained that it had evaluated the information Purvis provided and
decided that his assistance had not been substantial. Under the terms
of the plea agreement, the government reserved the right to determine
whether Purvis’ cooperation resulted in substantial assistance. Purvis
did not allege that the government’s decision was based on any
unconstitutional motive or was otherwise unrelated to a legitimate
government purpose. See Wade v. United States, 504 U.S. 181, 186
UNITED STATES v. PURVIS 3
(1992). Therefore, the district court properly refused to compel the
motion.
In Apprendi, the Supreme Court held that "[o]ther 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." 530 U.S. at 490. Because
Purvis failed to raise an Apprendi-type claim in the district court, our
review is for plain error. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). In order to demonstrate plain
error, Purvis must show that an error occurred, that the error was
plain, and that the error affected his substantial rights. Olano, 507
U.S. at 732. If Purvis can satisfy these requirements, we should not
exercise our discretion to correct the error "unless the error ‘seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.’" Olano, 507 U.S. at 732 (alteration in original) (quoting
United States v. Young, 470 U.S. 1, 17 (1985)).
We conclude that Purvis’ sentence was plainly erroneous. His
guilty plea to the drug conspiracy subjected him to a maximum statu-
tory sentence of twenty years under 21 U.S.C.A. § 841(b)(1)(C)
(West 1999), because the indictment did not charge a specific thresh-
old drug quantity. Promise, 255 F.3d at 156-57; United States v. Din-
nall, 269 F.3d 418, ___, 2001 WL 1229174, at *4 & n.3 (4th Cir.
2001). As explained in Promise, this was error, and the error was
plain. 255 F.3d at 160. An error affects substantial rights when it "ac-
tually affect[s] the outcome of the proceedings." United States v. Has-
tings, 134 F.3d 235, 240 (4th Cir. 1998). Because Purvis was
sentenced beyond the statutory maximum sentence for the crime of
which he was charged and convicted, the error affected his substantial
rights. Promise, 255 F.3d at 160; Dinnall, 2001 WL 1229174, at *4.
The Promise court did not agree on whether we should exercise our
discretion to notice the error, but a panel of this court has since held
that the error is jurisdictional in nature and must be noticed on plain
error review. United States v. Cotton, 261 F.3d 397, 405-07 (4th Cir.
2001) (holding that quantum of evidence establishing aggravated drug
quantity irrelevant when no drug quantity charged), petition for cert.
filed, Oct. 31, 2001 (No. 01-687). Therefore, we vacate Purvis’ sen-
tence and remand for resentencing to a term of imprisonment not to
exceed twenty years. See USSG § 5G1.1(a).
4 UNITED STATES v. PURVIS
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the conviction, but
vacate the sentence and remand for resentencing. This court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, then counsel may move 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 pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED