United States v. Darity

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4883
MICHAEL LEROY DARITY,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 01-4018
MICHAEL LEROY DARITY,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-95-132)
Submitted: November 28, 2001
Decided: December 13, 2001
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
No. 00-4883 affirmed and No. 01-4018 reversed and remanded by
unpublished per curiam opinion.
2 UNITED STATES v. DARITY
COUNSEL
Scott H. Gsell, LAW OFFICES OF SCOTT GSELL, Charlotte, North
Carolina, for Appellant. Robert J. Conrad, Jr., United States Attorney,
Brian L. Whisler, Assistant United States Attorney, Thomas E. Booth,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
These appeals arise from the district court’s orders granting partial
relief on Michael Darity’s 28 U.S.C.A. § 2255 (West Supp. 2001)
motion and denying the Government’s motion to reconsider. For the
reasons discussed below, we affirm in No. 00-4883 and, in No. 01-
4018, we reverse the order denying the Government’s motion for
reconsideration and remand for reimposition of Darity’s original sen-
tence.
Darity was convicted in 1997 of conspiracy to manufacture and
distribute crack cocaine, 21 U.S.C.A. §§ 841(a)(1) and 846 (West
1999), and sentenced to 384 months imprisonment, followed by five
years of supervised release. This court affirmed his conviction and
sentence on direct appeal. United States v. Darity, No. 98-4090, 1999
WL 397722 (4th Cir. June 17, 1999) (unpublished), cert. denied, 525
U.S. 1091 (1999).
Darity filed a § 2255 motion in the district court challenging his
conviction and sentence under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348 (2000). Darity also claimed that he was improperly
sentenced as a leader or organizer and that his attorney was ineffec-
tive for failing to stipulate to the facts surrounding his arrest. The dis-
UNITED STATES v. DARITY 3
trict court granted Darity’s § 2255 motion in part, reasoning that
Apprendi applied retroactively, and reduced Darity’s sentence to 240
months imprisonment. The court denied relief as to Darity’s other
claims. The Government filed a motion to reconsider, arguing that
Apprendi should not be applied retroactively to cases on collateral
review. The district court denied the motion. Darity and the Govern-
ment appeal.
In No. 00-4883, our review of the record and the district court’s
opinion to the extent it denied relief on Darity’s claims discloses no
reversible error. Accordingly, we affirm the denial of relief on the
reasoning of the district court. United States v. Darity, No. CR-95-132
(W.D.N.C. filed Oct. 25, 2001; entered Oct. 30, 2000).* In light of
our disposition in No. 01-4018, we deny as moot the Government’s
motion for summary reversal of the district court’s order to the extent
that it granted partial relief.
In No. 01-4018, the Government appeals from the district court’s
denial of its motion to reconsider the granting of relief on Darity’s
motion with respect to his claim under Apprendi. In United States v.
Sanders, 247 F.3d 139 (4th Cir.), cert. denied, 2001 WL 1244813(U.S. Nov. 13, 2001) (No. 01-6715), we held that Apprendi is not
retroactively applicable to cases on collateral review. Id. at 146. The
district court’s order squarely conflicts with Sanders. We therefore
reverse the district court’s order denying the Government’s motion
for reconsideration and remand with instructions to reimpose Darity’s
original 384-month sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
No. 00-4883 - AFFIRMED
No. 01-4018 - REVERSED AND REMANDED
*Although we grant Darity’s motion to file a supplemental pro se
brief, we have reviewed his claims and find them to be without merit.
See United States v. McAllister, ___ F.3d ___, No. 00-4423 (4th Cir.
Nov. 8, 2001) (holding that 21 U.S.C. § 841 is not unconstitutional in
light of Apprendi).