United States v. Proctor

34 F. App'x 902

Opinion

OPINION

PER CURIAM.

Clark Proctor, Jr., appeals his sentence for conspiracy to possess cocaine base with the intent to distribute and possession of cocaine base with intent to distribute, in violation of 21 U.S.C.A. §§ 841, 846 (West 1999 & Supp.2001). Finding no error, we affirm Proctor’s sentence.

Proctor contends his concurrent 360-month sentences are invalid under Ap prendi v. New Jersey, 580 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, Proctor’s sentence is not above the thirty year statutory maximum of § 841(b)(1)(C) applicable where the defendant has at least one qualifying prior conviction. See United States v. Dinnall, 269 F.3d 418 (4th Cir.2001); United States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc), petition for cert. filed, (U.S. Sept. 20, 2001) (No. 01-6398). Moreover, contrary to Proctor’s contention, Apprendi does not apply to judicial fact finding under the guidelines. United States v. Kinter, 235 F.3d 192, 199-201 (4th Cir.), cert. denied, 532 U.S. 937, 121 S.Ct. 1393, 149 L.Ed.2d 316 (2001). Thus, we find Apprendi is not implicated and affirm Proctor’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.