United States v. Miller

Rehearing granted in case No. 99-4737
by order filed 7/25/00
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4278
WILLIAM PATRICK MILLER, a/k/a
Scoop,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4737
MARION PROMISE, a/k/a Mario,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge;
Lyle E. Strom, Senior District Judge, sitting by designation.
(CR-98-7-MU)
Submitted: May 31, 2000
Decided: June 16, 2000
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Eric A. Bach, Charlotte, North Carolina; Gary L. Murphy, DOZIER,
MILLER, POLLARD & MURPHY, Charlotte, North Carolina, for
Appellants. Mark T. Calloway, United States Attorney, Gretchen C.F.
Shappert, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
A jury convicted Marion Promise and William Patrick Miller of
conspiracy to possess with intent to distribute cocaine and crack
cocaine in violation of 21 U.S.C.A. §§ 841(a)(1), 846 (West 2000).
Miller also was convicted of possession with intent to distribute crack
cocaine in violation of § 841(a)(1) and possession of a machine gun
in violation of 18 U.S.C.A. § 922(o) (West Supp. 2000). Miller
appeals his convictions, and Promise appeals his conviction and 360-
month sentence. Finding no reversible error, we affirm.
Miller challenges his convictions on the ground that the district
court erred in denying his motion to substitute counsel. We have
reviewed carefully the district court's decision to deny Miller's
motion to substitute counsel and conclude that there was no abuse of
discretion. See United States v. DeTemple, 162 F.3d 279, 288 (4th
Cir. 1998) (stating standard of review and discussing factors court
must consider), cert. denied, 526 U.S. 1137 (1999).
Promise first contends on appeal that his conspiracy conviction
should be vacated because the district court erred in treating the
enhanced penalties under 21 U.S.C.A. § 841(b) (West 2000), as sen-
tencing factors rather than as an element of the offense. He seeks to
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extend to § 841(b) the Supreme Court's decision in Jones v. United
States, 526 U.S. 227 (1999), which held that, under the federal car
jacking statute, 18 U.S.C. § 2119, certain penalty-enhancing factors
(the existence of death or serious bodily injury) are additional ele-
ments of the offense rather than sentencing enhancements. See id. at
251-52. No circuit to address this question has extended Jones to
§ 841(b). See United States v. Taylor, 210 F.3d 311, ___, 2000 WL
385343, at *6 (5th Cir. 2000) (holding that Jones did not support find-
ing of plain error); United States v. Jackson, 207 F.3d 910, 920-21
(7th Cir. 2000); United States v. Thomas, 204 F.3d 381, 383-84 (2d
Cir. 2000) (collecting cases from Tenth, Eleventh, and District of
Columbia circuits), petitions for cert. filed, Mar. 24 & May 12, 2000
(Nos. 99-8779, 99-9541); United States v. Swiney, 203 F.3d 397, 404
n.5 (6th Cir. 2000) (dicta), petitions for cert. filed, May 12 & 15, 2000
(Nos. 99-9522, 99-9559). We therefore find no plain error. See United
States v. Olano, 507 U.S. 725, 732-37 (1993).
Finally, Promise argues that he was sentenced in excess of the stat-
utory maximum. Because the jury convicted him of conspiracy to dis-
tribute cocaine and/or crack cocaine using a general verdict form,
Promise asserts that it is not possible to tell on what object of the con-
spiracy the jury based its decision. Promise argues, therefore, that he
must be sentenced in accordance with the lower penalty scheme--
here, powder cocaine--and that his thirty-year sentence exceeded the
statutory maximum of twenty years provided in § 841(b)(1)(C). The
government failed to address this argument in its brief. Our review is
for plain error. See Olano, 507 U.S. at 732-37; United States v.
Rhynes, 206 F.3d 349, 379 (4th Cir. 1999), petitions for cert. filed,
May 2 & 3, 2000 (Nos. 99-9386, 99-9393, 99-9458).
We addressed this issue in Rhynes, where we held, relying on
Edwards v. United States, 523 U.S. 511 (1998), and United States v.
Quicksey, 525 F.2d 337 (4th Cir. 1975), that a district court is prohib-
ited "from imposing a sentence in excess of the statutory maximum
for the least-punished object on which the conspiracy conviction
could have been based." Rhynes, 206 F.3d at 380. Here, the jury
returned a general verdict on the conspiracy count without identifying
the object or objects of the conspiracy--cocaine and/or crack. Prom-
ise was sentenced on the basis of a finding of guilt as to crack, result-
ing in a guideline range of 360 months to life.
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Had Promise been convicted of a cocaine-only conspiracy, how-
ever, he would have been held accountable for twenty kilograms
cocaine.* Although Promise asserts that he is subject to the twenty-
year maximum sentence set forth in § 841(b)(1)(C), his assertion is
incorrect. Twenty kilograms of cocaine exposes Promise to a maxi-
mum penalty of life in prison. See 21 U.S.C.A. § 841(b)(1)(A)(ii)
(providing for maximum sentence of life for offense involving five
kilograms or more of cocaine). Because Promise's thirty-year sen-
tence is within the life-sentence statutory maximum, we find no plain
error. See Rhynes, 206 F.3d 379-81.
Accordingly, we affirm Miller's convictions and Promise's convic-
tion and sentence. 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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* The probation officer concluded in the presentence report that Prom-
ise was responsible for approximately 20 kilograms of cocaine and crack.
Promise did not object to the factual findings in the presentence report,
which the district court adopted.
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