United States v. Kelly

15 F. App'x 44

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 29, 2001
• Docket: 99-4908
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Harold Edward Kelly appeals from his sentence imposed pursuant to his guilty plea to possession with intent to distribute crack cocaine. Kelly contends that his supervised release term of five years exceeded the maximum statutory term for his offense. We affirm.

Kelly bases his argument on the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Apprendi, the Supreme Court held that, other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Kelly argues that, under Apprendi, because the drug amount was not charged in the indictment, he could only be sentenced under the penalties described in 21 U.S.C.A. § 841(b)(1)(C) (West Supp.2000) (providing penalties for offenses involving less than five grams of crack cocaine: twenty-year maximum imprisonment term and a minimum of three years supervised release). Kelly’s imprisonment term was under the maximum prescribed by § 841(b)(1)(C). However, Kelly contends that his supervised release term of five years exceeded the statutory maximum supervised release term of three years.

Kelly has misread § 841(b)(1)(C), which clearly provides for a minimum supervised release term of three years, not a maximum. Since Kelly’s five-year supervised release term does not exceed the statutory range allowable regardless of drug quantity, Apprendi is inapplicable. The identical claims were raised and rejected by United States v. Pratt, 239 F.3d 640, 648 (4th Cir.2001), the holding of which requires affirmance in this case.

Accordingly, we affirm Kelly’s 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.