United States v. McCollum , 80 F. App'x 825 ( 2003 )


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  •                           UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                             No. 02-4907
    WILLIAM MCCOLLUM, JR.,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of South Carolina, at Florence.
    C. Weston Houck, District Judge.
    (CR-00-988)
    Argued: August 25, 2003
    Decided: November 12, 2003
    Before WILKINS, Chief Judge, and TRAXLER and
    GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    COUNSEL
    ARGUED: David Bruce Betts, LAW OFFICE OF DAVID B.
    BETTS, Columbia, South Carolina, for Appellant. Alfred William
    Walker Bethea, Assistant United States Attorney, Florence, South
    Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
    States Attorney, Florence, South Carolina, for Appellee.
    2                    UNITED STATES v. MCCOLLUM
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    William McCollum, Jr. ("McCollum") pleaded guilty to one count
    of possessing with the intent to distribute 50 grams or more of cocaine
    base in violation of 
    21 U.S.C. § 841
    (a)(1) and 
    18 U.S.C. § 2
    . During
    his sentencing hearing, McCollum raised for the first time an objec-
    tion to the quantity of drugs attributed to him in the pre-sentence
    report ("PSR"), which the district court rejected. On appeal, McCol-
    lum argues that the district court: (1) abused its discretion by refusing
    to consider his objection regarding the drug quantity attributable to
    him; and (2) violated 
    18 U.S.C. § 3553
    (c)(1), by failing to state in
    open court its reasons for imposing a 360-month sentence. Finding no
    reversible error, we affirm McCollum’s sentence.
    I.
    In July 2000, the DEA took McCollum into custody in South Caro-
    lina and advised him of his rights after observing him attempt to sell
    one kilogram of crack cocaine to a DEA informant. In an effort to
    cooperate with the government, McCollum identified his drug sup-
    plier and agreed to assist in his apprehension by acting as an infor-
    mant. Accordingly, the government provided McCollum with
    recording equipment and arranged a transaction with McCollum’s
    supplier. A few weeks later, however, McCollum disappeared. In
    December 2000, the government indicted and charged McCollum
    with one count of possessing with the intent to distribute 50 grams or
    more of cocaine base.
    In April 2002, McCollum was arrested and shortly thereafter
    entered a guilty plea on the possession charge. The probation officer
    prepared a PSR and later revised the same, incorporating two objec-
    tions raised by McCollum.1 At his sentencing hearing, McCollum
    1
    First, McCollum objected to a two-level enhancement for obstruction
    of justice related to his fleeing to New York in 2002. The district court
    UNITED STATES v. MCCOLLUM                          3
    raised, for the first time, an objection to the quantity of drugs attri-
    buted to him in the PSR. The district court inquired into whether
    McCollum had received the PSR, and having been informed that he
    had, refused to consider McCollum’s objection, stating that his objec-
    tion "comes too late." The district court then determined that McCol-
    lum’s total offense level was 35 and that the guideline sentencing
    range was 292-365 months of imprisonment. The district court sen-
    tenced McCollum to 360 months of imprisonment but did not provide
    an oral statement as to its reasons for imposing this sentence. The
    written criminal judgment, however, stated that McCollum’s sentence
    "conforms with the U.S. Sentencing Commission Guidelines."
    McCollum timely filed this appeal arguing that: (1) the district
    court abused its discretion by refusing to consider his objection to the
    drug quantity attributed to him; and (2) the district court violated 
    18 U.S.C. § 3553
    (c)(1) by failing to announce in open court its specific
    reasons for imposing a 360-month sentence.
    II.
    This Court reviews a district court’s decision of whether to con-
    sider untimely objections to the PSR for abuse of discretion. See
    United States v. Morsely, 
    64 F.3d 907
    , 914 (4th Cir. 1995). Our power
    to review sentences is limited to instances in which a sentence is
    imposed in violation of the law or imposed as a result of an incorrect
    application of the sentencing guidelines. See United States v. Jones,
    
    18 F.3d 1145
    , 1151 n.4 (4th Cir. 1994); United States v. Greer, 
    285 F.3d 158
    , 177 (2d Cir. 2002). McCollum argues that we have the
    power to review his sentence because it was imposed in violation of
    
    18 U.S.C. § 3553
    (c)(1). Because McCollum failed to raise this issue
    at sentencing, we review his claim for plain error.
    granted this objection. Second, McCollum objected to the PSR’s charac-
    terization of his two prior drug convictions as two separate incidents. The
    district court denied this objection.
    4                     UNITED STATES v. MCCOLLUM
    III.
    It is solely within the discretion of the district court to consider
    untimely challenges to the PSR. See Fed. R. Crim. P. 32(i)(1)(D).
    Indeed, the district court "may, for good cause, allow a party to make
    a new objection . . . ." 
    Id.
     Here, the district court heard McCollum’s
    objection to the drug quantity attributed to him in the PSR, J.A. 78,
    and inquired into whether the probation officer had furnished McCol-
    lum and his lawyer with a copy of the PSR, which contained informa-
    tion related to the drug quantity attributed to McCollum. 
    Id. at 79
    .
    Once the district court determined that McCollum and his lawyer had
    received a copy of the PSR and therefore notice of the drug quantity,
    it refused to consider the newly raised objection. 
    Id.
     We find that the
    district court did not abuse its discretion in denying this objection.
    Contrary to McCollum’s assertions, the district court provided
    McCollum the opportunity to proffer a reason as to why his objection
    to the drug quantity contained in the PSR should be considered. Hav-
    ing concluded that McCollum failed to proffer "good cause" as to its
    untimeliness, the district court properly refused to consider McCol-
    lum’s objection.2
    IV.
    Both parties agree that the district court violated 
    18 U.S.C. § 3553
    (c)(1) by failing to state in open court its reasons for imposing
    a 360-month sentence on McCollum. As previously noted, this
    Court’s ability to review sentences is limited to instances in which a
    sentence is "imposed in violation of law" or "as a result of an incor-
    rect application of the sentencing guidelines." 
    18 U.S.C. § 3742
    (a)(1-
    2). This Court has never directly addressed whether a sentence
    2
    In any event, the district court’s finding with respect to the quantity
    of drugs attributable to McCollum is not clearly erroneous. The PSR
    attributed 1,002 grams of cocaine base and 319.5 kilograms of powder
    to McCollum for purposes of sentencing. The probation officer derived
    this drug quantity from statements McCollum made when he was cooper-
    ating with the DEA in July 2000 and from a letter provided by McCol-
    lum’s lawyer in which McCollum admitted that he transported 1
    kilogram of cocaine base in July 2000. See J.A. 95 (detailing account of
    McCollum’s July 2000 drug sale transaction). These statements are suffi-
    cient to support the district court’s findings on this point.
    UNITED STATES v. MCCOLLUM                          5
    imposed in violation of § 3553(c)(1) is reviewable as a sentence "im-
    posed in violation of law."3 However, we need not resolve this issue
    today. Because McCollum failed to request an explanation or object
    to the sentence imposed during the sentencing proceedings, this Court
    may review the error under the plain error test. See United States v.
    Olano, 
    507 U.S. 725
    , 731-32 (1993). That is, McCollum’s sentence
    may be reversed only if the error is plain and affects his substantial
    rights. Even if McCollum overcomes this hurdle, the decision to cor-
    rect the error remains in the "sound discretion of the court of appeals,
    and the court should not exercise that discretion unless the error ‘seri-
    ously affects the fairness, integrity or public reputation of the judicial
    proceedings.’" 
    Id. at 732
     (internal citation omitted).
    Here, the district court relied upon the PSR for its determination of
    the sentencing guideline range — 292 to 365 months — applicable to
    McCollum. McCollum did not object to the guideline range and the
    district court sentenced him to a term of imprisonment within that
    range, 360 months. Thus, although the district court erred by failing
    to state, in open court, its reasons for this sentence, we conclude that
    the error does not seriously affect the fairness and integrity of the
    judicial proceedings. We therefore find that the district court did not
    commit plain error warranting reversal of McCollum’s sentence.
    V.
    For the above-mentioned reasons, we find no reversible error. We
    therefore affirm McCollum’s sentence.
    AFFIRMED
    3
    In United States v. Jones, 
    18 F.3d 1145
    , 1151 n.4 (4th Cir. 1994), this
    Court declined to address the reviewability of a sentence imposed in vio-
    lation of § 3553(c)(1).