finding that a defendant who entered plea negotiations but did not plead guilty until after jury selection was not entitled to the § 3El.l(b) reduction
How later courts described this case
- finding that a defendant who entered plea negotiations but did not plead guilty until after jury selection was not entitled to the § 3El.l(b) reduction
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4124
SAMMIE LEE BROWN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-99-489)
Submitted: October 31, 2001
Decided: December 13, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James P. Rogers, Columbia, South Carolina, for Appellant. Scott N.
Schools, United States Attorney, Nancy C. Wicker, Assistant United
States Attorney, William K. Witherspoon, Assistant United States
Attorney, Ann Agnew Cupp, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
2 UNITED STATES v. BROWN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sammie Lee Brown appeals his conviction and 189-month sen-
tence for being a felon in possession of a firearm, 18 U.S.C.A.
§ 922(g)(1) (West 2000), and possession of five or more grams of
cocaine base (crack) with intent to distribute, 21 U.S.C. § 841(a)
(1994). We affirm.
Brown first asserts that the district court abused its discretion in
denying his motion to sever all seven counts in the superseding indict-
ment for trial. After his motion was denied, Brown pled guilty to two
counts and the rest were dismissed on the government’s motion. A
valid guilty plea constitutes an admission of the material elements of
the crime, McCarthy v. United States, 394 U.S. 459, 466 (1969), and
waives non-jurisdictional errors, such as defects in the indictment.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Brown has thus
waived review of the district court’s denial of his severance motion.
Moreover, we find that the denial of separate trials on each count did
not result in prejudice amounting to a miscarriage of justice. See
United States v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995) (providing
standard).
Next, Brown contends that the district court erred in applying a
three-level adjustment under U.S. Sentencing Guidelines Manual
§ 3A1.2(b) (2000), for assaulting a law enforcement officer "in a
manner creating a substantial risk of serious bodily injury." The
adjustment was based on Brown’s ramming of two police vehicles
that boxed in his car during his arrest for drug trafficking. Having
reviewed the evidence before the district court at sentencing, we are
satisfied that the adjustment was properly applied.
Brown also contests a two-level adjustment under USSG § 3C1.2
for recklessly creating "a substantial risk of death or serious bodily
UNITED STATES v. BROWN 3
injury to another person in the course of fleeing from a law enforce-
ment officer." This adjustment resulted from a high-speed chase that
Brown initiated after he was stopped for running a red light several
months before his drug trafficking arrest. The court accepted the offi-
cer’s statement that Brown exceeded 100 m.p.h. during the chase and
that Brown "attempted to run another car off the road, . . . hit his
brakes abruptly to try force the officer’s car to hit his car, [and] . . .
passed cars on the right and left." The district court’s assessment of
the credibility of witnesses generally is not reviewable on appeal.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). We find
that, on the facts as stated by the officer, the district court did not
clearly err in finding that Brown recklessly created a substantial risk
of serious bodily injury to other drivers.
Finally, Brown argues that the district court erred in refusing to
grant him a three-level adjustment for acceptance of responsibility. A
three-level adjustment is available to a defendant only if he (1) pro-
vides timely and complete information to the government about his
involvement in the offense, or (2) in a timely manner notifies the gov-
ernment that he intends to plead guilty, "thereby permitting the gov-
ernment to avoid preparing for trial . . . ." USSG § 3E1.1(b)(1)-(2).
Although Brown was engaged in plea negotiations before his guilty
plea, he did not decide to enter into a plea agreement until after a jury
had been selected. Consequently, the government was forced to pre-
pare for trial. In this circumstance, the district court did not err in
refusing to award Brown the additional level of reduction under
§ 3E1.1(b).
We therefore affirm the conviction and sentence. 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.
AFFIRMED