United States v. Demotsis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4223
RUSSELL DEMOTSIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-99-77)
Submitted: January 18, 2002
Decided: February 8, 2002
Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appel-
lant. John L. Brownlee, United States Attorney, Eric M. Hurt, Assis-
tant United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DEMOTSIS
OPINION
PER CURIAM:
Russell Demotsis appeals his 136-month sentence imposed by the
district court following his guilty plea, pursuant to a written plea
agreement, to one count of conspiring to manufacture methamphet-
amine in violation of 21 U.S.C. § 846 (1994). Demotsis also seeks to
file a pro se supplemental brief raising additional issues. Although we
grant Demotsis’ motion to file a supplemental brief and accompany-
ing materials and have considered his arguments therein, we affirm
his conviction and sentence.
Demotsis’ assignments of error on appeal turn on the fact that the
indictment returned against him erroneously describes methamphet-
amine as a Schedule III controlled substance rather than a Schedule
II controlled substance. Based upon this misidentification of metham-
phetamine as a Schedule III controlled substance, Demotsis contends
he was only eligible for the five-year statutory-maximum of
§ 841(b)(1)(D). Because this claim was not raised in the district court,
we review for plain error. United States v. Olano, 507 U.S. 725, 731-
32 (1993).
We find Demotsis’ arguments meritless. First, we conclude the
misidentification of the proper schedule for methamphetamine is
harmless error under Fed. R. Crim. P. 7(c)(3). See United States v.
Greenwood, 974 F.2d 1449, 1472-73 (5th Cir. 1992). Second, Demot-
sis cannot argue he was mislead by this misidentification, as the
description of the statutory penalties in his plea agreement make it
clearly evident that Demotsis knowingly subjected himself to sentenc-
ing for manufacture of a Schedule II controlled substance. As a result,
because Demotsis was properly subject to the twenty-year statutory
maximum of § 841(b)(1)(C) for Schedule II controlled substances,
despite the error in his indictment, his 136-month sentence does not
implicate Apprendi. See United States v. Angle, 254 F.3d 514, 518
(4th Cir.), cert. denied, Phifer v. United States, 122 S.Ct. 309 (2001).
We therefore find no plain error.
In light of the foregoing, we affirm Demotsis’ conviction and sen-
tence, and dispense with oral argument because the facts and legal
UNITED STATES v. DEMOTSIS 3
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED