United States v. White , 54 F. App'x 576 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4544
ELIJAH JEROME WHITE, a/k/a Dice,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-98-455)
Submitted: November 27, 2002
Decided: December 17, 2002
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. J. Strom Thur-
mond, Jr., United States Attorney, Miller W. Shealy, Jr., Assistant
United States Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WHITE
OPINION
PER CURIAM:
Elijah Jerome White, a/k/a "Dice," was convicted pursuant to a
plea agreement for conspiracy to possess with intent to distribute and
to distribute cocaine and cocaine base. He received a 360-month sen-
tence. On appeal, White argues that the district court erred in: (1)
denying his motion to compel the government to file a motion for a
downward departure based on his cooperation; (2) imposing a sen-
tence greater than 240 months imprisonment given that the drug quan-
tity was not specified in the indictment; (3) enhancing his sentence in
light of the government’s failure to provide notice of his prior felony
convictions; (4) sentencing him as a career offender under the sen-
tencing guidelines; (5) denying his motion for a downward adjust-
ment for acceptance of responsibility; and (6) using a prior conviction
that had been expunged to sentence him. Finding no reversible error,
we affirm.
White first argues that the district court erred in denying his motion
to enforce the plea agreement because the agreement required the
government to move for a downward departure based on his coopera-
tion. White’s plea agreement contained no unconditional promise to
file a motion for downward departure, but instead left the decision to
the Government’s discretion. Furthermore, there is no evidence or
allegation that the Government’s refusal to move for a downward
departure was based upon an unconstitutional motive or that the Gov-
ernment acted in bad faith. See Wade v. United States, 504 U.S. 181,
185-86 (1992). Accordingly, we find this claim without merit.
White next contends that the district court erred in imposing a sen-
tence in excess of twenty years because drug quantity was not alleged
in the indictment, and therefore he should not have been sentenced in
excess of 240 months under Apprendi v. New Jersey, 530 U.S. 466(2000). In his plea agreement, White stipulated and agreed that the
quantity of cocaine involved was at least 5 to 15 kilograms, and that
the amount of cocaine base was at least 50 grams with a base offense
level of at least 32 for purposes of calculating his sentence. He further
stipulated that he had at least two prior felony drug convictions within
UNITED STATES v. WHITE 3
the meaning of 21 U.S.C. § 851 (1994), and that the filing of the
agreement constituted the filing of an adequate § 851 information.
We find that the Supreme Court’s holding in Apprendi is not impli-
cated in this case. Because White stipulated to having a prior drug fel-
ony conviction and to the Government’s filing of a proper information
with the district court in that regard pursuant to 21 U.S.C. § 851, his
statutory maximum sentence under 21 U.S.C. § 841(b)(1)(C) (2000)
was thirty years. Because § 841(b)(1)(C) authorizes a ten-year
enhancement based solely on a defendant’s prior felony convictions,
and Apprendi explicitly exempts prior convictions from its scope, 530
U.S. at 490, White’s thirty-year sentence does not contain an
Apprendi defect. The Apprendi rule simply does not apply to penalty
enhancements based on prior convictions. Id. Accordingly, this claim
is also without merit.
In a related argument, White maintains that the district court erred
in enhancing his sentence where the Government failed to provide the
required statutory notice of prior convictions before the guilty plea.
He maintains that the Government sought to enhance his sentence
under § 841(b)(1)(A) because he committed the subject offense "after
a prior conviction for a felony drug offense has become final." He
states, however, that it was incumbent upon the government to file an
information with the court stating in writing the previous convictions
relied upon before entry of a guilty plea, pursuant to 21 U.S.C.
§ 851(a)(1). We also find this claim non-meritorious. White stipulated
to "a prior conviction for a felony drug offense" in his plea agreement.
He does not contend on appeal that the plea agreement is somehow
invalid or that his plea was not knowingly and voluntarily entered.
Accordingly, he is bound by the terms of his plea agreement. United
States v. Williams, 29 F.3d 172, 174-75 (4th Cir. 1994); United States
v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
Additionally, White argues that the district court erred in finding
he was a career offender under U. S. Sentencing Guidelines Manual
§ 4B1.1 (2000), because the earlier convictions upon which the classi-
fication was based were merely part of an ongoing conspiracy involv-
ing the same people with whom he was charged with conspiring in
the instant offense. Hence, he contends, they were part of the instant
4 UNITED STATES v. WHITE
offense and therefore should not have been considered "prior convic-
tions" under the guidelines.
This court conducts de novo review of legal interpretation of the
guidelines and reviews the underlying factual findings for clear error.
United States v. Williams, 977 F.2d 866, 869 (4th Cir. 1992); United
States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). Because
White challenges the district court’s determination of whether his pre-
vious convictions qualified as a prior felony conviction under the
career offender guideline, this court reviews this issue de novo.
United States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996). White
specifically argues that his prior convictions were a part of the ongo-
ing conspiracy that formed the basis for the subject conviction, and
therefore should not be considered "prior felony convictions" within
the meaning of the guideline. The superseding indictment alleges that
the conspiracy for which White was convicted began in 1995. The
three prior felony convictions in question occurred well before 1995.
We find this claim is wholly without merit.
White also argues that the district court erred in denying him a
reduction in his offense level for acceptance of responsibility pursuant
to USSG § 3E1.1(a). The denial of an adjustment for acceptance of
responsibility is a factual determination reviewed for clear error.
United States v. Miller, 77 F.3d 71, 74 (4th Cir. 1996). The determi-
nation of the district court is due great deference on review. United
States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996) (citing U.S. Sen-
tencing Guidelines Manual § 3E1.1, cmt. n.5 (1993)). The burden is
on the defendant to establish by a preponderance of the evidence that
he is entitled to the adjustment. United States v. Urrego-Linares, 879
F.2d 1234, 1238-39 (4th Cir. 1989). In all but extraordinary cases, a
defendant who receives an enhancement in his sentence for obstruc-
tion of justice is not entitled to a reduction for acceptance of responsi-
bility. USSG § 3E1.1, cmt. n.4 (2000). Here, White received a two-
level enhancement for obstruction of justice under USSG § 3C1.1.
White fled the jurisdiction in violation of his bond and did not appear
for sentencing. Although he claimed to have fled because he was in
fear for his life, White was ultimately arrested in North Carolina dur-
ing the course of a new drug crime. In light of these facts, we find
no clear error in the court’s denial of White’s motion for a downward
adjustment based on acceptance of responsibility.
UNITED STATES v. WHITE 5
Last, White contends that a prior conviction that had been
expunged was used against him in calculating his criminal history, in
violation of USSG § 4A1.2(j), which provides that sentences for
expunged convictions cannot be counted in computing criminal his-
tory points. The record discloses, however, that White was not
assessed criminal history points for the November 1997 incident in
question as there was no conviction. We conclude that there was no
violation of USSG § 4A1.2(j). To the extent that White argues that the
use of this incident as relevant conduct was also prohibited by USSG
§ 4A1.2(j), the argument is baseless. See United States v. Watts, 519
U.S. 148, 155-57 (1997) (holding that an absence of a conviction does
not prevent the sentencing court from considering conduct underlying
the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence).
Accordingly, we affirm White’s conviction and sentence. We dis-
pense 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