United States v. Harris , 26 F. App'x 96 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4115
BELTON HARRIS, JR., a/k/a Lett,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-99-1055)
Submitted: October 10, 2001
Decided: October 24, 2001
Before WILKINS, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William N. Nettles, Columbia, South Carolina, for Appellant. Stacey
Denise Haynes, OFFICE OF THE 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Unpublished opinions are not binding precedent in this circuit.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. HARRIS
OPINION
PER CURIAM:
Belton Harris was convicted pursuant to his guilty plea of two
counts of possession with intent to distribute cocaine base in violation
of 21 U.S.C. § 841(a)(1) (West 1999 & Supp. 2001). Harris’ attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), in which he represents there are no arguable issues of
merit in this appeal. Nevertheless, in his brief counsel addressed the
possibility of illegal sentencing under the rule announced in Apprendi
v. New Jersey, 530 U.S. 466 (2000). Harris was notified of his right
to file a supplemental brief and responded with a letter reiterating
counsel’s arguments.
The district court sentenced Harris to a 188 month term of impris-
onment to run concurrently on both counts based upon its findings
that he distributed a total of 27.6 grams of cocaine base. Harris claims
the failure of the district court to treat the drug quantities as an ele-
ment of the offense to be presented to the jury and proven beyond a
reasonable doubt violated Apprendi. We find Harris’ reliance on
Apprendi is misplaced. Harris’ sentence of 188 months does not
exceed the 240 month maximum in § 841(b)(1)(C) for an "identifiable
but unspecified quantity" of cocaine base. See United States v. Prom-
ise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc) (holding that statu-
tory 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).
Moreover, Apprendi itself specifically excludes prior convictions
as an element of an offense that must be submitted to the jury and
proven beyond a reasonable doubt. See Apprendi, 530 U.S. at 2362-
63. Therefore, Harris’ contention that the district court should have
treated his prior convictions as elements of the offense is also merit-
less.
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
This court requires that counsel inform his client, in writing, of his
UNITED STATES v. HARRIS 3
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. Coun-
sel’s motion must state that a copy thereof was served on the client.
Finally, 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