Document Info

DocketNumber: 99-4348

Judges: Widener, Michael, Hamilton

Filed Date: 12/18/2001

Status: Non-Precedential

Modified Date: 11/5/2024

  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 99-4348
    RAWLE ANTHONY COLE, a/k/a Danny,
    Defendant-Appellant.
    
    On Remand from the United States Supreme Court.
    (S. Ct. No. 00-6520)
    Submitted: November 30, 2001
    Decided: December 18, 2001
    Before WIDENER and MICHAEL, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    Affirmed in part, vacated in part, and remanded by unpublished per
    curiam opinion.
    COUNSEL
    William N. Nettles, Columbia, South Carolina, for Appellant. Scott
    N. Schools, United States Attorney, Marshall Prince, Assistant United
    States Attorney, Columbia, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    2                       UNITED STATES v. COLE
    OPINION
    PER CURIAM:
    Rawle Anthony Cole appealed from his jury conviction and result-
    ing life sentence plus sixty-month consecutive sentence for conspir-
    acy to distribute and possess with intent to distribute crack cocaine,
    in violation of 
    21 U.S.C.A. §§ 841
    , 846(a)(1) (West Supp. 2001) and
    carrying a firearm in relation to a drug-trafficking offense, in viola-
    tion of 
    18 U.S.C.A. § 924
    (c), (o) (West Supp. 2001). The Supreme
    Court vacated our previous opinion affirming Cole’s conviction and
    sentence and remanded for reconsideration under Apprendi v. New
    Jersey, 
    530 U.S. 466
     (2000). We now affirm in part, vacate in part,
    and remand for re-sentencing.
    Cole assigned error to the district court’s refusal to give a multiple
    conspiracies instruction to the jury, arguing that the evidence did not
    establish a single overall conspiracy. We find that the district court
    did not err by denying the request that the jury be instructed on multi-
    ple conspiracies. See United States v. Kennedy, 
    32 F.3d 876
    , 884 (4th
    Cir. 1994); United States v. Crockett, 
    813 F.2d 1310
    , 1316-17 (4th
    Cir. 1987).
    We do find plain error, however, in regard to Cole’s sentence,
    vacate his sentence, and remand to the district court for re-sentencing.
    In his supplemental brief filed after remand, Cole contends that his
    sentence was imposed in violation of Apprendi’s requirement 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."
    Apprendi, 
    530 U.S. at 490
    . Because Cole did not raise this challenge
    to his sentence before the district court, he may only do so on appeal
    if he can demonstrate plain error. United States v. Angle, 
    254 F.3d 514
    , 517 (4th Cir.) (citing Fed. R. Crim. P. 52(b); United States v.
    Olano, 
    507 U.S. 725
    , 731-32 (1993)), cert. denied, 
    70 U.S.L.W. 3244
    (U.S. Oct. 1, 2001) (No. 01-5838). Consequently, in order to prevail
    on appeal, Cole must demonstrate that: (1) his indictment does not
    include the specific threshold drug quantities necessary for conviction
    under the aggravated drug trafficking offenses in 
    21 U.S.C.A. §§ 841
    (b)(a)(A), (B) (West 2001); (2) his resulting sentence was in
    UNITED STATES v. COLE                         3
    excess of the statutory maximum otherwise available under
    § 841(b)(1)(C); (3) sentencing in this manner affected his substantial
    rights; and (4) this court should notice that error. United States v.
    Promise, 
    255 F.3d 150
    , 156-57, 160, 161 (4th Cir. 2001), petition for
    cert. filed, Sept. 20, 2001 (No. 01-6398). We note that drug quantity
    was not charged in the indictment or presented to the jury.
    Applying the plain error analysis to Cole, we find his sentence
    must be vacated in light of Apprendi. Pursuant to 
    21 U.S.C.A. § 841
    (b)(1)(C), Cole was exposed to a total statutory maximum
    prison term of twenty years. Angle, 
    254 F.3d at 518-19
    . Because the
    imposed life sentence exceeds the applicable statutory maximum of
    twenty years, the error is plain. Promise, 
    255 F.3d at 156-57
    . With
    respect to the third prong of the plain error inquiry, we have found
    that a sentence in excess of the authorized statutory maximum to
    which a defendant would not otherwise be subject affects his substan-
    tial rights. 
    Id.
     Finally, we recently determined that when the sentence
    imposed is defective due to a fatal error in the indictment, as is the
    case here, this court should notice the error. United States v. Cotton,
    
    261 F.3d 397
    , 403-04 (4th Cir. 2001), petition for cert. filed, Oct. 31,
    2001 (No. 01-687).
    We therefore vacate Cole’s sentence and remand for re-sentencing
    to a sentence not to exceed twenty years on the conspiracy count. We
    deny Cole’s motion to file a supplemental pro se brief. We dispense
    with oral argument because the facts and legal contentions are ade-
    quately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED IN PART, VACATED IN PART,
    AND REMANDED