United States v. Viands

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4554
MICHAEL STEVENSON VIANDS, a/k/a
Mike,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-00-57)
Submitted: May 17, 2002
Decided: June 6, 2002
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mark Jenkinson, DOUGLAS & JENKINSON, Martinsburg, West
Virginia, for Appellant. Thomas E. Johnston, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.
2 UNITED STATES v. VIANDS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Michael S. Viands appeals his 238-month sentence imposed upon
his conviction following his guilty plea for distribution of cocaine
base within 1000 feet of a school, in violation of 21 U.S.C. § 846, 860
(1994). Viands’ attorney filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967). Viands filed a pro se supplemental
brief. We affirm.
The first issue raised in the Anders brief is whether the district
court erred when it declined to award Viands a three-level downward
departure for acceptance of responsibility pursuant to U.S. Sentencing
Guidelines Manual §§ 3E1.1(a), (b) (2000) and increased his offense
level by two pursuant to USSG § 3C1.1 for obstruction of justice. We
review the district court’s factual findings as to whether to apply a
sentence reduction or enhancement for clear error and review the dis-
trict court’s legal interpretation of the Sentencing Guidelines de novo.
United States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001). Because
Viands failed to appear for sentencing, fled the jurisdiction, and led
authorities on a high speed chase before being apprehended, we find
the district court did not err in denying a reduction for acceptance of
responsibility and applying an enhancement for obstruction of justice.
Id.Next, we find Viands’ sentence of 238 months does not implicate
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the sentence
does not exceed the statutory maximum of 480 months as set forth in
§ 860.* See United States v. Kinter, 235 F.3d 192, 199-202 (4th Cir.
2000), cert. denied, 532 U.S. 937 (2001) (holding Apprendi is not
*The initial maximum sentence for possession with intent to distribute
is twenty years under § 841(b)(1)(C). Under § 860, the maximum dou-
bles when the offense was committed within 1000 feet of a school.
UNITED STATES v. VIANDS 3
implicated by an application of the Sentencing Guidelines that
increases the sentencing range, so long as the sentence imposed does
not exceed the statutory maximum).
In his supplemental pro se brief, Viands contends the district court
exposed him to double jeopardy by sentencing him under both § 841
and § 860. Although the indictment, plea agreement, and judgment
recite both statutory provisions, the language describing the nature of
the offense of conviction in these instruments, the punishments, the
single count, and the single special assessment show Viands was con-
victed only of the § 860 offense. The recitation of both statutory pro-
visions in the indictment, plea agreement, and judgment results from
the fact that § 860 enhances the punishment for § 841(a) offenses
committed near a school. Therefore, we find Viands was not subject
to double jeopardy.
As required by Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. We therefore affirm
Viands’ conviction and sentence. 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 contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED