United States v. Diombera

46 F. App'x 706

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 26, 2002
• Docket: 01-4545
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Dramane Diombera appeals his 210 month sentence for conspiracy to possess with intent to distribute and distribution of over one kilogram of heroin in violation of 21 U.S.C. § 846 (2000). * Diombera claims his sentence is erroneous under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the district court refused to submit sentencing guideline factors to the jury, specifically the exact amount of heroin Diombera conspired to distribute, including any amount attributed to him by way of relevant conduct, and whether he played a leadership role in the conspiracy. We review questions of law regarding the application of the sentencing guidelines de novo. See United States v. Hudson, 272 F.3d 260, 263 (4th Cir.2001).

Diombera’s arguments are meritless. First, his indictment included the element of the threshold drug quantity — more than one kilogram of heroin — necessary to trigger the statutory sentencing range of ten years to life. See 21 U.S.C. § 841(b)(1)(A)© (2000). Diombera’s sentence thus did not exceed the statutory maximum. Moreover, his argument that sentencing enhancements under the sentencing guidelines must be submitted to the jury is foreclosed by our decision in United States v. Kinter, 235 F.3d 192, 201-

02 (4th Cir.2000), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). Accordingly, we affirm the judgment of the district court. 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.

* Diombera does not challenge his conviction and twelve-month concurrent sentence for simple drug possession.