UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4665
JERMAINE LAVONNE CHASE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4666
LITTLE TOM CHILDRESS,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CR-94-106)
Submitted: October 29, 1999
Decided: November 22, 1999
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
No. 98-4665 affirmed in part and vacated and remanded in part, and
No. 98-4666 affirmed by unpublished per curiam opinion.
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COUNSEL
Robert Paul Dwoskin, Charlottesville, Virginia; Louis C. Allen, III,
Federal Public Defender, Eric D. Placke, Assistant Federal Public
Defender, Greensboro, North Carolina, for Appellants. Robert P.
Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jermaine L. Chase (No. 98-4665) and Little Tom Childress, Jr.
(No. 98-4666), were resentenced on charges of conspiracy to distrib-
ute cocaine and possession with the intent to distribute cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), 846 (1999).* They appeal
those sentences. Counsel for Chase and Childress filed a joint brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that
the district court erred in enhancing their offense levels for possession
of a firearm, but concluding that there were no meritorious grounds
for appeal. Both Chase and Childress filed supplemental pro se briefs.
In accordance with the requirements of Anders , we have examined the
entire record for both Chase and Childress for meritorious issues for
appeal.
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*This Court reversed Chase's and Childress's original 18 U.S.C.
§ 924(c), convictions in light of Bailey v. United States, 516 U.S. 137
(1995), vacated both Appellants' drug count sentences, and remanded
both cases to the district court for resentencing. See United States v.
Chase, No. 95-5290, 1997 WL 657132 (4th Cir. Oct. 23, 1997) (unpub-
lished); United States v. Jones, No. 95-5370, 1998 WL 196620 (4th Cir.
Apr. 22, 1998) (unpublished).
2
The sole ground raised by counsel for Chase and Childress in their
joint Anders brief, and one of the grounds raised by Chase and Chil-
dress individually in their supplemental pro se briefs, was that the dis-
trict court erred in increasing their offense level by two levels for
possession of a firearm pursuant to USSG § 2D1.1(b)(1). Specifically,
Appellants claim that the evidence is insufficient to establish a con-
nection between the firearms seized and the crack cocaine distribu-
tions conducted, and with respect to Childress, insufficient to
establish that he possessed a firearm, or that the presence of a firearm
was reasonably foreseeable.
Based upon our review of the record, we find that the district
court's increase of Chase's and Childress's offense level pursuant to
United States Sentencing Commission, Guidelines Manual
§ 2D1.1(b)(1), was supported by a preponderance of the evidence and
was not, therefore, clearly erroneous. See United States v. Apple, 915
F.2d 899, 914 (4th Cir. 1990). Moreover, collateral relief by way of
Bailey on an 18 U.S.C. § 924(c) conviction does not prevent the
application of the § 2D1.1(b)(1) enhancement for exactly the same
conduct. See generally, United States v. Hillary, 106 F.3d 1170, 1172-
73 (4th Cir. 1997). Hence, we find this claim to be without merit.
Chase, pro se, has raised several issues for this Court's review.
First, he contends that the district court erred in denying him an
acceptance of responsibility reduction. Second, he claims error in the
district court's reliance on two uncounseled convictions in determin-
ing his criminal history category. Chase's next claim is that the dis-
trict court erred in failing to consider his claim that the Government
did not establish that the substance for which he was responsible was
crack, rather than powder, cocaine. We have reviewed the record and
find these claims to be without merit.
Chase's final challenge is to the district court's conclusion that it
could not depart downward from the Sentencing Guidelines range to
reward Chase for post-offense rehabilitation. When Chase raised the
issue of departure, claiming that during his incarceration he had put
together various programs to help others, both in and outside the
prison, including young people, the district court asked Chase for spe-
cifics regarding the programs to which he was referring. Chase then
described the programs. In response, the district court stated:
3
Mr. Chase has asked me to depart downwardly. I have to
have a good, solid legal ground to do that, Mr. Chase, and
although what you've said to me is appealing emotionally,
and as I indicated in my earlier sentencing, it was an
extreme sentence I had to impose, but I am still bound by
the guidelines, and I feel I must impose a sentence within
the guidelines.
(J.A. 206).
When a district court exercises its discretion and refuses to depart,
its decision is not reviewable on appeal. See United States v. Bayerle,
898 F.2d 28, 31 (4th Cir. 1990). However, a refusal to depart is
reviewable if the court bases its refusal on a perception that it lacks
legal authority to depart. See United States v. Brock, 108 F.3d 31, 33
(4th Cir. 1997). This Court has held that extraordinary and unusual
post-offense rehabilitation provides an appropriate ground for depar-
ture. Id. at 35.
It is not apparent from the district court's statements at resentenc-
ing whether it declined to consider departure for Chase's post-offense
rehabilitation because of its perceived lack of authority to do so or
because it concluded that Chase's rehabilitation efforts were not "ex-
traordinary and unusual." Because of this lack of clarity, we vacate
Chase's sentence and remand the case to the district court. On
remand, the district court can consider whether or not Chase's activi-
ties constitute "extraordinary and unusual post-offense rehabilitation,"
Brock, 108 F.3d at 35, such that departure from the sentencing guide-
lines would be appropriate. In all other aspects, we affirm Chase's
sentence. We deny, without prejudice, Chase's pending motion to
reconsider this Court's order denying counsel leave to withdraw from
further representation of Chase.
In his supplemental pro se brief, Childress likewise claims that the
district court erred in failing to give him a downward departure for
post-offense rehabilitation. However, Childress failed to seek a
downward departure in district court. Because Childress raises this
claim for the first time on appeal, we decline to review it. Accord-
ingly, we affirm Childress's sentence.
4
This Court requires that counsel inform their clients, in writing, of
their right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this Court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument on these appeals because the facts
and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
No. 98-4665 - AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
No. 98-4666 - AFFIRMED
5