United States v. Epps

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4729
THOMAS EPPS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-98-219)
Submitted: August 31, 2001
Decided: October 24, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Sandra B. Jelovsek, Johnson City, Tennessee, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Jerry W. Miller, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. EPPS
OPINION
PER CURIAM:
Thomas Epps pled guilty to conspiracy to distribute and possess
with intent to distribute cocaine and crack cocaine, in violation of 21
U.S.C.A. § 846 (West 1999), and the district court sentenced Epps to
a 188-month term of imprisonment. Epps appeals, challenging the
validity of his guilty plea and sentence in light of the Supreme Court’s
decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (hold-
ing that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory max-
imum must be submitted to a jury, and proved beyond a reasonable
doubt"). We dismiss the appeal.
In his plea agreement, Epps waived the right to appeal his convic-
tion and sentence on all grounds, except ineffective assistance of
counsel and prosecutorial misconduct—neither of which he raises on
appeal. The magistrate judge accepted Epps’ guilty plea at a hearing
conducted in accordance with Rule 11 of the Federal Rules of Crimi-
nal Procedure. We have reviewed Epps’ plea agreement, the Rule 11
colloquy, and the order accepting the plea and find that Epps made
a knowing and intelligent waiver of his right to appeal. See United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (pro-
viding standard).
Although Epps asserts that his waiver is unenforceable, we dis-
agree. Epps’ 188-month sentence was within the 240-month statutory
maximum under 21 U.S.C.A. § 841(b)(1)(C) (West 1999). See United
States v. Promise, 255 F.3d 150, 160 (4th Cir. 2001) (en banc) (hold-
ing that statutory maximum is twenty years when drug quantity is not
charged as element of offense and found by jury beyond a reasonable
doubt); United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (en
banc) (same); United States v. Marin, 961 F.2d 493, 496 (4th Cir.
1992) (holding that waiver of appeal does not prohibit appeal of a
sentence imposed in excess of the statutory maximum). We therefore
dismiss the appeal based upon Epps’ valid and enforceable waiver of
his right to appeal. 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.
DISMISSED