United States v. Bolar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4380
JAMES WILLIAM BOLAR,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-98-662-JFA)
Submitted: September 26, 2000
Decided: December 18, 2001
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed in part, dismissed in part, vacated in part, and remanded by
unpublished per curiam opinion.
COUNSEL
Wendy J. Keefer, BARNWELL, WHALEY, PATTERSON &
HELMS, L.L.C., Charleston, South Carolina, for Appellant. Jane Bar-
rett Taylor, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. BOLAR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James William Bolar pled guilty to possession with intent to dis-
tribute and distribution of cocaine base (crack), in violation of 21
U.S.C.A. § 841(a) (West 1999), and was sentenced as a career
offender to a term of 280 months imprisonment and five years super-
vised release. See U.S. Sentencing Guidelines Manual § 4B1.1 (1998).
Bolar’s attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), raising three issues but asserting that there are no
meritorious issues for appeal. Bolar has been informed of his right to
file a pro se supplemental brief, but has not filed a brief. We affirm
the conviction, dismiss Bolar’s challenge to the district court’s deci-
sion not to depart, vacate the sentence, and remand for resentencing.
Bolar sold 53.87 grams of crack to an informant in the presence of
an undercover agent. Another 79.27 grams of crack was found in a
bag in his yard after Bolar agreed to sell the informant 4.5 ounces
(127.5 grams) of crack, then failed to show up as arranged. Bolar did
not contest the probation officer’s recommendation that he was
responsible for 133 grams of crack.
In the Anders brief, Bolar’s appellate counsel suggests that the gov-
ernment may have violated the plea agreement by not moving for a
downward departure for substantial assistance. See USSG § 5K1.1,
p.s. Bolar’s previous attorney conceded at sentencing that Bolar’s
assistance to that point could not be considered substantial. Because
the question of a possible breach of the plea agreement was not raised
below, we review the issue for plain error only, see United States v.
Olano, 507 U.S. 725 (1993), and find none.
Bolar also contests the district court’s denial of his motion for a
departure based on the fact that he suffers from ulcerative colitis. The
court’s determination that Bolar’s condition was not "an extraordinary
UNITED STATES v. BOLAR 3
physical impairment," see USSG § 5H1.4, p.s., and thus did not war-
rant a departure, is not reviewable. See United States v. Bayerle, 898
F.2d 28, 31 (4th Cir. 1990). Accordingly, we dismiss this portion of
the appeal.
Next, Bolar claims that his former attorney rendered ineffective
assistance by failing to advise him about the possible penalties he
faced before he entered his guilty plea, and in failing to argue that the
government had a duty under the plea agreement to file a § 5K1.1
motion for a departure based on substantial assistance. Because the
record in this case does not conclusively demonstrate that Bolar
received ineffective assistance, this claim must be made in a motion
to vacate sentence pursuant to 28 U.S.C.A. § 2255 (West Supp.
2001). See United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).
After the parties filed their briefs on appeal, the Supreme Court
held that, other than 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 v. New Jersey, 530 U.S. 466, 490 (2000). Because Apprendi
was decided while Bolar’s case was on direct review, we must apply
the rule of Apprendi to his appeal. See Griffith v. Kentucky, 479 U.S.
314, 328 (1987).
Bolar’s guilty plea is unaffected by Apprendi. See United States v.
Dinnall, 269 F.3d 418, 423 n.3 (4th Cir. 2001) (validity of guilty plea
to drug offense involving an unspecified quantity of drugs is not
called into question when defendant receives a sentence in excess of
the sentence authorized under § 841(b)(1)(C)); United States v. Prom-
ise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (conviction for
unspecified quantity of drugs is not error), petition for cert. filed,
Sept. 20, 2001 (No. 01-6398).
However, Bolar’s 280-month sentence exceeded the applicable
statutory maximum penalty for the crime of which he was convicted.
Because drug quantity was not charged in the indictment, Bolar was
subject to a statutory maximum sentence of twenty years imprison-
ment under 21 U.S.C.A. § 841(b)(1)(C), for his conviction. Promise,
255 F.3d at 152 (applying Apprendi to drug offenses in §§ 841 and
846, and holding that drug quantity "must be treated as [an] element[ ]
4 UNITED STATES v. BOLAR
of an aggravated drug trafficking offense" under 21 U.S.C.
§ 841(b)(1)(A) or (b)(1)(B), not merely a sentencing factor). Bolar’s
sentence of 280 months imprisonment for his conviction was thus
plainly erroneous. Id. at 156-57, 160. The total maximum sentence to
which Bolar was exposed was twenty years because he was convicted
of a single count* and the government did not seek an enhanced sen-
tence based on his prior felony drug convictions pursuant to 21 U.S.C.
§ 851 (1994). The error thus affected his substantial rights. United
States v. Cotton, 261 F.3d 397, 406-07 (4th Cir. 2001) (holding that
sentence exceeding maximum authorized by § 841(b)(1)(C) for
offense involving unspecified drug quantity is plain error affecting
substantial rights and is jurisdictional in nature), petition for cert.
filed, Oct. 31, 2001 (No. 01-687). Bolar was charged with possession
of an unspecified quantity of crack with intent to distribute, see 21
U.S.C.A. § 841(b)(1)(C), but he "received a sentence for a crime—an
aggravated drug trafficking offense under section 841(b)(1)(A)—with
which [he was] neither charged nor convicted." Cotton, 261 F.3d at
404. In Cotton, we concluded that an error of this nature is "funda-
mental," and "seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings," and that, consequently, we are "at
liberty to correct it." Cotton, 261 F.3d at 405 (internal quotations and
citations omitted). We explicitly rejected the government’s argument
that overwhelming evidence of drug quantity can excuse the error. Id.
at 407. We therefore exercise our discretion to notice the error, vacate
Bolar’s sentence, and remand for resentencing consistent with
Apprendi and Promise. See USSG § 5G1.1(a).
Pursuant to Anders, this court has reviewed the record for revers-
ible error and, other than that noted above, find none. We therefore
affirm Bolar’s conviction, vacate his sentence, and remand for resen-
tencing. We dismiss that portion of the appeal that challenges the dis-
trict court’s decision not to depart downward. This court requires that
counsel inform the client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
*When the defendant has been convicted of multiple counts and the
guideline range exceeds the highest statutory maximum, the district court
must impose consecutive terms of imprisonment to achieve a sentence
within the guideline range. United States v. White, 238 F.3d 537, 542-43
(4th Cir. 2001), cert. denied, 121 S. Ct. 2235 (2001); USSG § 5G1.2(d).
UNITED STATES v. BOLAR 5
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 pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART, DISMISSED IN PART,
VACATED IN PART, AND REMANDED