United States v. Diombera

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4545
DRAMANE DIOMBERA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-99-750)
Submitted: September 19, 2002
Decided: September 26, 2002
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael P. O’Connell, STIRLING, O’CONNELL & PENNINGTON,
Charleston, South Carolina, for Appellant. J. Strom Thurmond, Jr.,
United States Attorney, Deborah B. Barbier, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. DIOMBERA
OPINION
PER CURIAM:
Dramane Diombera appeals his 210-month sentence for conspiracy
to possess with intent to distribute and distribution of over one kilo-
gram of heroin in violation of 21 U.S.C. § 846 (2000).* Diombera
claims his sentence is erroneous under Apprendi v. New Jersey, 530
U.S. 466 (2000), because the district court refused to submit sentenc-
ing guideline factors to the jury, specifically the exact amount of her-
oin Diombera conspired to distribute, including any amount attributed
to him by way of relevant conduct, and whether he played a leader-
ship role in the conspiracy. We review questions of law regarding the
application of the sentencing guidelines de novo. See United States v.
Hudson, 272 F.3d 260, 263 (4th Cir. 2001).
Diombera’s arguments are meritless. First, his indictment included
the element of the threshold drug quantity—more than one kilogram
of heroin—necessary to trigger the statutory sentencing range of ten
years to life. See 21 U.S.C. § 841(b)(1)(A)(i) (2000). Diombera’s sen-
tence thus did not exceed the statutory maximum. Moreover, his argu-
ment that sentencing enhancements under the sentencing guidelines
must be submitted to the jury is foreclosed by our decision in United
States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000), cert. denied,
532 U.S. 937 (2001). Accordingly, we affirm the judgment of the dis-
trict court. 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
*Diombera does not challenge his conviction and twelve-month con-
current sentence for simple drug possession.