United States v. Binta , 16 F. App'x 224 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4088
KWAME DEMETT BINTA, a/k/a Karl D.
Bolling, Jr.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-00-144-R)
Submitted: July 31, 2001
Decided: August 15, 2001
Before WIDENER, LUTTIG, and GREGORY, Circuit Judges.
Affirmed in part and vacated in part by unpublished per curiam opin-
ion.
COUNSEL
C. David Whaley, Anthony G. Spencer, MORCHOWER, LUXTON
& WHALEY, Richmond, Virginia, for Appellant. Kenneth E. Mel-
son, United States Attorney, Stephen W. Miller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.
2 UNITED STATES v. BINTA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kwame Binta was convicted of possession of marijuana, 21
U.S.C.A. § 844 (West 1999), possession with intent to distribute mar-
ijuana, 21 U.S.C.A. § 841 (West 1999), possession of a firearm and
ammunition by an unlawful user of a controlled substance, 18 U.S.C.
§ 922(g)(3) (1994), and possession of a firearm in relation to a drug
trafficking crime, 18 U.S.C. § 924 (1994). He received a sentence of
eighty-one months imprisonment. We affirm in part and vacate in
part.
Initially, Binta contends that he cannot be convicted of both pos-
session with intent to distribute and simple possession as simple pos-
session is a lesser included offense of possession with intent to
distribute. The Government concedes error and we agree. Accord-
ingly, we vacate Binta’s convictions on two counts of possession of
marijuana pursuant to 21 U.S.C.A. § 844 and the related twelve
month sentences. Because the sentences for these counts were to be
served concurrently with the sentences for possession with intent to
distribute pursuant to 21 U.S.C.A. § 841, Binta’s total sentence of
eighty-one months is unchanged.
Binta next contends that his constitutional right to a trial by jury
was violated when his motion to rescind his waiver of jury trial was
denied. The motion to withdraw a waiver of trial by jury is committed
to the discretion of the district judge. Wyatt v. United States, 591 F.2d
260 (4th Cir. 1979). A court’s decision to deny a defendant’s motion
to rescind his waiver of a jury trial is reviewed by this Court for abuse
of discretion. United States v. Holmen, 586 F.2d 322, 323-24 (4th Cir.
1978). The court’s denial of Binta’s motion was not based on the
inconvenience rescheduling would cause the court and the Govern-
ment but rather on the court’s perception that Binta was playing
games with the court, based on the fact that Binta had thrice waived
UNITED STATES v. BINTA 3
his right to a jury trial prior to moving to withdraw it. We find that
the district court did not abuse its discretion by denying Binta’s
motion made fifteen days before trial to rescind his oft repeated
waiver of trial by jury.
Binta’s contention that the evidence was insufficient to convict him
of possession with intent to distribute the marijuana found in his vehi-
cle on March 24th or even simple possession of the marijuana recov-
ered on May 4th from his van is reviewed in the light most favorable
to the government. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Our review of the evidence presented at trial demonstrates the Gov-
ernment presented evidence sufficient to prove possession with intent
to distribute on both occasions.
Binta, upon his arrest on March 24, averred that the marijuana was
his and that he used marijuana for religious purposes. On appeal,
Binta claims the First Amendment protects him from prosecution for
possession of marijuana for religious purposes. We find this argument
unavailing. Employment Div., Dep’t of Human Resources of Oregon
v. Smith, 494 U.S. 872, 878-79 (1990).
Binta next challenges the constitutionality of 21 U.S.C. § 841 after
the ruling of the United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466 (2000). We, along with a number of our fellow
circuits, find this argument unpersuasive. United States v. Cernobyl,
___ F.3d ___, 2001 WL 733406 at *2-3 (10th Cir. June 29, 2001);
United States v. Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001);
United States v. Fort, 248 F.3d 475, 482-83 (5th Cir. 2001); United
States v. Brough, 243 F.3d 1078, 1080 (7th Cir. 2001).
Finally, Binta asserts that the district court erred in enhancing his
sentence for obstruction of justice pursuant to U.S. Sentencing Guide-
lines § 3C1.1. We review an application of the sentencing guidelines
by the district court for clear error in factual matters; legal conclu-
sions are reviewed de novo. United States v. Wilson, 198 F.3d 467,
471 (4th Cir. 1999). The district court in its sentencing memorandum
found the three prongs of this court’s test for perjury satisfied. United
States v. Smith, 62 F.3d 641, 646-67 (4th Cir. 1995). We do not find
clear error in those factual findings.
4 UNITED STATES v. BINTA
Based on the aforementioned findings, we affirm Binta’s convic-
tions and sentence pursuant to the two counts of possession with
intent to distribute marijuana, the two counts of possession of a fire-
arm/ammunition by an unlawful user of a controlled substance and
one count of possession of a firearm during/in relation to/in further-
ance of/a drug trafficking crime. We vacate Binta’s conviction and
sentence for two counts of possession of marijuana.
AFFIRMED IN PART, VACATED IN PART