United States v. Benenhaley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4545
ANDERSON BENENHALEY, a/k/a Andy,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(CR-99-73)
Submitted: January 28, 2004
Decided: April 22, 2004
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jack B. Swerling, LAW OFFICES OF JACK B. SWERLING,
Columbia, South Carolina, for Appellant. James Strom Thurmond, Jr.,
United States Attorney, Jane Barrett Taylor, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
2 UNITED STATES v. BENENHALEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a jury trial, Anderson Benenhaley was convicted of con-
spiracy to possess with intent to distribute and to distribute metham-
phetamine, in violation of 21 U.S.C. § 841(a)(1) (2000) and 21 U.S.C.
§ 846 (2000), and distribution of methamphetamine, in violation of
§ 841. He was sentenced to life imprisonment. Benenhaley noted a
timely appeal, arguing his sentence and conviction were unconstitu-
tional. In a published opinion, Benenhaley’s convictions were
affirmed, but his sentence was vacated in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000),1 and the case was remanded to the dis-
trict court for resentencing. See United States v. Benenhaley, 281 F.3d
423 (4th Cir.), cert. denied, 537 U.S. 869 (2002).
On remand, the district court sentenced Benenhaley to 210 months’
imprisonment. Benenhaley has again timely appealed his conviction
and sentence to this Court.
In this second appeal, Benenhaley’s attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967). Although
counsel states there are no meritorious issues for appeal, he argues
Benenhaley’s conviction, based on an indictment lacking a specific
drug quantity, is unconstitutional under Apprendi. In the alternative,
he argues, based on the indictment’s lack of a specific drug quantity,
Benenhaley’s offense level could be no greater than twelve. Finally,
counsel argues Benenhaley’s 210-month sentence is unconstitutional
because powder methamphetamine is a Schedule III drug, and
because no specific drug quantity was found by a jury beyond a rea-
1
The Supreme Court held in Apprendi 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." 530 U.S. at 490.
UNITED STATES v. BENENHALEY 3
sonable doubt, Benenhaley’s sentence cannot exceed five years’
imprisonment. Benenhaley filed a pro se supplemental brief raising
several additional issues. The Government has elected not to file a
formal brief. In accordance with Anders, we have considered the
briefs and examined the entire record for meritorious issues. Finding
no error, we affirm.
We review Benenhaley’s Apprendi argument de novo. See United
States v. Mackins, 315 F.3d 399, 405 (4th Cir.) (holding if defendant
makes timely and sufficient Apprendi objection in trial court, and pre-
serves the objection, this Court employs de novo review), cert.
denied, 123 S. Ct. 2099 (2003). Under United States v. Promise, 255
F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 535 U.S. 1098(2002), while a sentence increased beyond the statutory maximum
sentence and based on an indictment that charges an unspecified drug
quantity violates Apprendi, it nonetheless suffices to support a convic-
tion under 21 U.S.C. § 841 (2000). Thus, we find Benenhaley’s argu-
ment that his conviction is unconstitutional under Apprendi
unpersuasive.
Benenhaley’s alternative argument, that his offense level, which
the district court found to be thirty-six, could be no greater than
twelve, resulting in a maximum sentence of sixteen months’ impris-
onment, also fails. Under Promise, § 841(b)(1)(C), the section under
which Benenhaley was convicted, relates to "unaggravated" drug traf-
ficking offenses, for which no specific drug quantity need be speci-
fied in the indictment and found by a jury beyond a reasonable doubt.
Moreover, a defendant convicted under this section and who, as
Benenhaley, has a prior felony drug conviction, is subject to a maxi-
mum sentence of thirty years’ imprisonment. Further, the district
court’s finding that Benenhaley was responsible for 1.9 grams of pure
methamphetamine corresponds to an offense level of thirty-six under
U.S. Sentencing Guidelines Manual § 2D1.1 (1998).2 Thus, we find
2
The guidelines direct the district court to apply the guideline version
in effect on the date of sentencing, unless that creates an ex post facto
problem, in which case the version in effect on the date the crime of con-
viction was committed applies. USSG § 1B1.11. The 1998 version was
in effect at the time of Benenhaley’s sentencing on May 31, 2000.
4 UNITED STATES v. BENENHALEY
the district court did not err in its calculation of Benenhaley’s offense
level.
Next, Benenhaley argues the district court erred by classifying
powder methamphetamine as a Schedule II controlled substance, as
opposed to a Schedule III controlled substance, in calculating his sen-
tence. We review legal issues de novo. United States v. Daughtrey,
874 F.2d 213, 217-18 (4th Cir. 1989). Benenhaley does not dispute
the United States Attorney General promulgated changes in Schedule
II to include methamphetamine, without regard to its form. However,
he argues because Schedule III, which initially contained powder
methamphetamine, has not been amended, it remains a Schedule III
controlled substance, thereby resulting in a maximum term of impris-
onment not to exceed five years under § 841(b)(1)(D). We find this
argument meritless.
First, there is no evidence § 841 was drafted with regard to the par-
ticular schedule of the drug at issue. Furthermore, 21 U.S.C. § 811(2000) conveys authority to the Attorney General to transfer a drug
from one schedule to another under certain enumerated circum-
stances. Moreover, 21 U.S.C. § 812 (2000), which establishes the
schedules of controlled substances, notes that the schedules shall be
updated and republished annually. The revised schedules are pub-
lished in Title 21 of the Code of Federal Regulations at § 1308.
According to 21 C.F.R. § 1308.12(d)(2) (1999),3 "[m]ethamphet-
amine, its salts, isomers, and salts of its isomers" are Schedule II con-
trolled substances. Thus, contrary to Benenhaley’s argument, meth-
amphetamine, regardless of its form, is a Schedule II controlled sub-
stance.
Benenhaley raises several issues in his pro se supplemental brief.4
3
The 1999 version of the C.F.R. was in effect at the time of Benenha-
ley’s sentencing on May 31, 2000.
4
Benenhaley raises the following arguments: (1) the Government pre-
sented insufficient evidence to support his conspiracy conviction; (2) an
insufficient nexus exists between an underlying felony and the forfeiture
conviction; (3) the forfeiture does not bear an appropriate relationship to
the gravity of the offense; (4) the second superseding indictment is dupli-
citous; (5) the jury’s general verdict was incorrectly applied to two dis-
tinct charges; and (6) the district court’s failure to instruct the jury on the
lesser included offense of mere possession constitutes plain error.
UNITED STATES v. BENENHALEY 5
However, because he raises them for the first time on appeal after
remand and resentencing, they are foreclosed by the mandate rule. See
United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (holding the man-
date rule "forecloses relitigation of issues expressly or impliedly
decided by the appellate court," as well as "issues decided by the dis-
trict court but foregone on appeal"). Because Benenhaley did not raise
these issues in his initial appeal, and because this Court remanded the
case to the district court for resentencing based solely on the Apprendi
issue, they are foreclosed by the mandate rule.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm the district court’s amended judgment sentencing Benen-
haley to 210 months’ imprisonment. 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, but counsel believes that such a petition would be
frivolous, then counsel may move in 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED