The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4070
JIMMY O’NEAL BROWN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-98-189)
Submitted: September 29, 2000
Decided: October 19, 2000
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
E. Lavoyd Morgan, Jr., Lewisburg, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, John L. File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROWN
OPINION
PER CURIAM:
Jimmy O’Neal Brown appeals from his criminal conviction and
sentence for aiding and abetting in the possession of methamphet-
amine and cocaine with the intent to distribute in violation of 21
U.S.C.A. § 841(a)(1) (West 1999) and 18 U.S.C.A. § 2 (West 2000).*
We dismiss.
Brown raises two issues on appeal. First, he contends that the drugs
found incident to a police stop of his car should have been suppressed
as the fruits of an illegal stop. Second, he asserts that because his
criminal history consisted mainly of misdemeanor offenses, sentenc-
ing him as a career offender under U.S. Sentencing Guidelines Man-
ual § 4B1.1 (1998) overrepresented the seriousness of his criminal
history.
Addressing the first of these claims, we find that by pleading
guilty, Brown has waived his right to appeal the district court’s denial
of his suppression motion. See Tollett v. Henderson, 411 U.S. 258,
267 (1973). As to Brown’s second claim, challenging the district
court’s application of the career offender enhancement, Brown does
not challenge any of the offenses used to place him within the pur-
view of this enhancement, nor does he challenge the enhancement’s
applicability to his sentence. Rather, he contends that, because he was
already in criminal history category VI, application of this enhance-
ment overrepresented the seriousness of his offense, and that the court
should therefore have chosen not to apply it. Thus, Brown is essen-
tially asserting that the district court should have departed downward,
by not applying this enhancement, due to an alleged overrepresenta-
tion of his criminal history.
*We have considered the effect of Apprendi v. New Jersey, ___ U.S.
___, 68 U.S.L.W. 4576 (U.S. June 26, 2000) (No. 99-478), and find that,
because Brown received sentences of imprisonment and terms of super-
vised release that did not exceed the statutory maximums set out in 21
U.S.C.A. § 841(b)(1)(C) (West 1999), no plain error occurred. See
United States v. Aguayo-Delgado, ___ F.3d ___, 2000 WL 988128, at *6
(8th Cir. July 18, 2000).
UNITED STATES v. BROWN 3
Review of the record reveals that the district court was aware that
it had the authority to grant a downward departure on this basis, but
that it chose not to do so. This decision is therefore not reviewable.
See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). More-
over, as Brown concedes, he was already within criminal history cate-
gory VI prior to the application of the career offender status, and was
sentenced to the lowest possible sentence within his guideline range.
Accordingly, Brown was in no way harmed by application of the
challenged enhancement.
Finding that Brown has waived his right to challenge the alleged
Fourth Amendment violation, and that we are without authority to
review the district court’s decision not to depart, we dismiss Brown’s
appeal. 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.
DISMISSED