United States v. Kerns

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4193
DAVID RUSSELL KERNS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-00-31)
Submitted: January 7, 2002
Decided: January 24, 2002
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
David O. Schles, STOWERS & ASSOCIATES, Charleston, West
Virginia, for Appellant. Thomas E. Johnston, United States Attorney,
Sam G. Nazzaro, Assistant United States Attorney, Sharon L. Potter,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
2 UNITED STATES v. KERNS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
David Russell Kerns appeals his conviction and 168-month sen-
tence following a guilty plea to possession with intent to distribute
cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C). We affirm in part and dismiss in part.
Kerns asserts that in light of Apprendi v. New Jersey, 530 U.S. 466(2000), his indictment is defective because it failed to charge the
quantity of cocaine as an element of the offense, thereby depriving the
district court of jurisdiction to accept his guilty plea. We find the
indictment is sufficient because it properly charged the elements of
the offense for which Kerns was convicted. See United States v. Din-
nall, 269 F.3d 418, 423 n.3 (4th Cir. 2001); United States v. Cotton,
261 F.3d 397, 405 (4th Cir. 2001), cert. granted, 2002 WL 10623, 70
U.S.L.W. 3348 (U.S. Jan. 4, 2002) (No. 01-687); United States v.
Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc), petition for
cert. filed, Sept. 20, 2001 (No. 01-6938). Thus, Kerns is not entitled
to relief on this claim.
Kerns contests the validity of his guilty plea and sentence. We have
reviewed the record and find that the district court complied with Fed.
R. Crim. P. 11 in accepting Kerns’ guilty plea. See United States v.
Goins, 51 F.3d 400, 402 (4th Cir. 1995). We therefore affirm Kerns’
conviction.
Regarding Kerns’ sentencing claims, a defendant whose plea
agreement contains an express waiver of the right to appeal may not
appeal his sentence unless the waiver is shown to be unknowing or
involuntary. United States v. Brown, 232 F.3d 399, 403 (4th Cir.
2000); see also United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992). Our review of the plea agreement and the record of the plea
colloquy reveal the waiver was knowing and voluntary. Moreover, the
UNITED STATES v. KERNS 3
sentence did not exceed the statutory maximum penalty, and there is
no evidence that it was based on a constitutionally impermissible fac-
tor. See Marin, 961 F.2d at 496. We therefore dismiss this portion of
the appeal.
Kerns also seeks to file a pro se supplemental brief in which he
reiterates his Apprendi claim and challenges the constitutionality of
§ 841. While we grant Kerns’ motion to file a pro se brief, for the rea-
sons discussed above, we find Kerns’ Apprendi claim is meritless. In
addition, we have recently upheld the constitutionality of § 841. See
United States v. McAllister, 272 F.3d 228, 232 (4th Cir. 2001).
Accordingly, we affirm Kern’s conviction and dismiss that portion
of the appeal which seeks to challenge his 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 IN PART, DISMISSED IN PART