United States v. Boardley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-6701
WARREN BOARDLEY, a/k/a Black,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CR-88-386-JFM)
Submitted: August 31, 2001
Decided: October 3, 2001
Before WILKINS and LUTTIG, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Warren Boardley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BOARDLEY
OPINION
PER CURIAM:
Warren Boardley appeals the district court’s orders denying his
motion filed pursuant to former Fed. R. Crim. P. 35(a)1 and denying
his motion for reconsideration. We affirm.
Boardley pleaded guilty to racketeering, 18 U.S.C. §§ 1961,
1962(c) (Count One); a RICO violation, 18 U.S.C. §§ 1961, 1962(d)
(Count Two); conspiracy to distribute heroin and cocaine, 21 U.S.C.
§ 846 (Count Three); and conspiracy to defraud the United States, 18
U.S.C. § 371 (Count Four). The district court sentenced Boardley to
twenty years on Count One; seven years on Count Two, to run con-
secutively to the sentence on Count One; and twenty years on Count
Three, to run consecutively to the other two sentences. A five-year
sentence on Count Four runs concurrently with the sentence on Count
One.
In his motion, Boardley attacked his convictions and sentences on
Counts One, Two, and Three. The district court denied relief, and
Boardley timely appealed.
To the extent that Boardley seeks to challenge his convictions, for-
mer Rule 35 is limited to correction of an illegal sentence, not an ille-
gal conviction. See Hill v. United States, 368 U.S. 424, 430 (1962).
Thus, Boardley should challenge his convictions in a 28 U.S.C.A.
§ 2255 (West Supp. 2001) motion.
Boardley contests his sentences on Counts One and Two. He mis-
takenly believes that those convictions were for the same offense and
that the corresponding sentences exceed the statutory maximum pen-
alty to which he was exposed. Courts have upheld convictions under
both 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d), finding that the
statutes encompass different criminal conduct. United States v. Coo-
nan, 938 F.2d 1253 (2d Cir. 1991); United States v. Pungitore, 910
1
Because the offenses occurred prior to November 1, 1987, former
Rule 35(a) applies.
UNITED STATES v. BOARDLEY 3
F.2d 1084, 1115 (3rd Cir. 1990). Here, Boardley was exposed to a
maximum penalty of forty years—twenty years on each count—for
his violation of the two statutes. See 18 U.S.C. § 1963. Contrary to
Boardley’s claim, his total twenty-seven-year sentence on Counts One
and Two was within the statutory maximum.
Boardley also contends that his twenty-year sentence on Count
Three violated the rule of Apprendi v. New Jersey, 530 U.S. 466(2000). Assuming without deciding that an Apprendi claim is cogni-
zable in a motion brought under former Rule 35(a), there was no
Apprendi violation. Boardley pleaded guilty to violating 21 U.S.C.
§ 846. The indictment did not allege a specific drug quantity for
which Boardley was responsible. Therefore, the maximum penalty to
which he was subject was twenty years. See 21 U.S.C.
§ 841(b)(1)(C); United States v. Angle, 254 F.3d 514, 517-18 (4th Cir.
2001) (en banc).2
We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before us and argument would not aid the decisional process.
AFFIRMED
2
We note that the maximum penalties under 18 U.S.C. § 1963 and 21
U.S.C. § 841(b)(1)(C) have remained unchanged since Boardley’s con-
victions.