Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

USA v. Doe Boy
Precedential or Non-Precedential:

Docket 0-4415




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Recommended Citation
"USA v. Doe Boy" (2002). 2002 Decisions. Paper 93.
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                                                              NOT
PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                              No. 00-4415


                        UNITED STATES OF AMERICA

                                  v.

           DOE BOY a/k/a Clinton French a/k/a Christopher
             Williams Clemons a/k/a Chris Clemons a/k/a
                           Chris Collins

       Christopher Williams Clemons, a/k/a "Chris Clemons,"
          a/k/a "Doe Boy," a/k/a "Clinton French," a/k/a
                         "Chris Collins,"
                                         Appellant


          On Appeal from the United States District Court
                   for the District of Delaware
                      (D.C. No. 99-cr-00082-1)
             District Judge: Hon. Roderick R. McKelvie


               Submitted Under Third Circuit LAR 34.1(a)
                            February 4, 2002

Before:   SLOVITER, AMBRO, Circuit Judges, and POLLAK, District Judge*

                      (Filed: February 5, 2002)


                   MEMORANDUM OPINION OF THE COURT

___________________________________


* Hon. Louis H. Pollak, Senior United States District Judge for the
Eastern District of
  Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.

     Christopher Clemons, a/k/a Doe-Boy, appeals from his judgment of
sentence and
convictions for possession with intent to distribute cocaine and carrying
a firearm during
a drug trafficking felony. Clemons' counsel filed a vigorous brief which
states it was
filed under the aegis of Anders v. California, 

(1967). He
also filed a motion
for leave to withdraw from representing Clemons, expressing counsel's
belief that all of
Clemons' grounds for appeal are frivolous. Clemons, who was notified by
this court of
the opportunity to file a pro se brief, failed to do so. Because
counsel's brief did not
explain why the arguments made are frivolous, this court asked counsel to
explain further.
Counsel then filed a reply brief, which states that the District Court
neither erred nor
abused its discretion as to the various issues raised in the principal
brief. After reviewing
the various briefs, we will affirm the judgment of conviction and sentence
and grant
counsel's motion to withdraw.
                               I.
     Clemons presents seven arguments. He first argues that the District
Court erred in
denying his motion to dismiss the indictment pursuant to Apprendi v. New
Jersey, 

(2000), because the indictment did not allege a specific weight
of crack cocaine.
In our recent en banc decision, United States v. Vazquez, 

(3d
Cir. 2001), we
held "that an Apprendi violation only occurs if the drug quantity is not
found by a jury
beyond a reasonable doubt and the defendant's sentence under   841 exceeds
20 years."

Clemons' sentence under    841 did not exceed twenty years.
     Second, Clemons argues he should have been granted a new trial based
on newly
discovered evidence to the effect that he was searched without a warrant
after he was
arrested. Searches conducted incident to a lawful arrest of a suspect's
person and the area
of his immediate control do not violate the Fourth Amendment. See, e.g.,
Illinois v.
Lafayette, 

, 644 (1983).
     Third, Clemons argues the District Court erred in denying him a two
level
reduction in offense level for his acceptance of responsibility under
U.S.S.G.   3E1.1(a).
Clemons points us to no testimony or action reflecting an acceptance of
responsibility.
Given the "'great deference on review'" we accord to trial judges under
3E1.1(a), this
court discerns no error. See United States v. Cohen, 

, 804
(3d Cir. 1999)
(quoting U.S.S.G.    3E1.1 application note 5).
     Fourth, Clemons argues the trial court erred in denying his motion to
dismiss every
sentencing enhancement under Apprendi because no prior drug felony
convictions were
alleged in the indictment, and the government did not prove any prior
felony drug
convictions at trial. Where, as here, a defendant's ultimate sentence
does not exceed the
prescribed statutory maximum, a court need not enquire whether the
enhanced sentence
was based on the fact of a prior conviction. United States v. Mack, 

, 238-39
(3d Cir. 2000).
     Fifth, Clemons argues he was entitled to notice of a sentencing
enhancement
pursuant to 21 U.S.C.    851(a)(1) for his prior felony convictions.
However, "when a
defendant is not being sentenced pursuant to a    851 statutory enhancement
i.e., one that
exceeds the statutory maximum embodied in the Guideline's sentencing
ranges the
defendant is not entitled to rely on the procedural protections contained
in   851." United
States v. Escobales, 

, 263 (3d Cir. 2000) (emphases omitted).
Clemons was
not sentenced pursuant to a    851 statutory enhancement.
     Sixth, Clemons argues the District Court abused its discretion by
declining to
depart downward based on Clemons' pretrial confinement at Gander Hill, a
local
Delaware prison, under allegedly substandard conditions. We have held on
numerous
occasions that we are without jurisdiction to review discretionary
refusals to depart
downward where the district court "fully understood the scope of its
discretion to depart
from the Guidelines." United States v. Sally, 

, 79 (3d Cir.
1997).
     Seventh, Clemons argues the District Court erred in calculating
Clemons' base
offense on the basis of Clemons' possession of cocaine base, or "crack,"
rather than
cocaine, pursuant to U.S.S.G. 2D1.1(c) and the definition of cocaine base
contained in
Note D to that table. Given the government chemist's testimony and the
testimony of the
drug officer, the District Court did not clearly err in determining the
substance was
cocaine base.
                              II.
     Convinced by the reasoning proffered in counsel's reply brief of the
frivolity of
Clemons' seven arguments, and having found no nonfrivolous issues for
appeal upon our
independent review, we will affirm the convictions and sentence of the
District Court, and
will grant counsel's motion to withdraw.
____________________________

TO THE CLERK:

                              Please file the foregoing opinion.


                                   /s/ Dolores K. Sloviter
                              Circuit Judge