UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4332
TRACY LENARD EPPS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., Chief District Judge.
(CR-99-573)
Submitted: March 6, 2001
Decided: April 4, 2001
Before WILKINS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Cameron B. Littlejohn, Jr., Columbia, South Carolina, for Appellant.
Marshall Prince, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. EPPS
OPINION
PER CURIAM:
Tracy Lenard Epps pled guilty to one count of possession with
intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1)
(1994). At sentencing, Epps was found to be a career offender pursu-
ant to U.S. Sentencing Guidelines Manual § 4B1.1 (1998), and sen-
tenced to 262 months’ imprisonment. His counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), in which
he raises the following four issues, but claims that none have merit:
(1) whether the district court complied with the requirements of Rule
11 of the Federal Rules of Criminal Procedure; (2) whether a common
law robbery conviction was properly used to determine the Appel-
lant’s criminal history category; (3) whether a drug conviction was
worth two criminal history points in determining the criminal history
category; and (4) whether the court erred by not granting a downward
departure. Epps has filed a pro se supplemental brief in which he
asserts that: (1) his guilty plea was not knowing and voluntary and the
indictment was invalid in light of Apprendi v. New Jersey, 530 U.S.
466 (2000); and (2) he was improperly classified as a career offender
because a predicate conviction was unconstitutional. Finding no
reversible error, we affirm.
We find that the district court properly conducted Epps’ Rule 11
hearing. See Fed. R. Crim. P. 11; see also United States v. DeFusco,
949 F.2d 114, 116 (4th Cir. 1991). We further find that the court did
not err by assessing 3 criminal history points for the common law rob-
bery conviction and 2 criminal history points for a prior drug offense.
See USSG §§ 4A1.1(b), 4A1.2(d), (k). Finally, because the district
court recognized its authority to depart, its refusal to do so is not
reviewable on appeal. See United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir. 1990).
We find that Epps’ issues raised in his pro se supplemental brief
are without merit. Under Apprendi, "[o]ther than the fact of 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." Apprendi, 120 S. Ct. at 2362.
Because Epps was sentenced below the statutory maximum autho-
UNITED STATES v. EPPS 3
rized by 21 U.S.C. § 841(b)(1)(C), there was no error in failing to
include as an element of the offense the amount of drugs involved in
the transaction. See United States v. Aguayo-Delgado, 220 F.3d 926,
933-34 (8th Cir. 2000), cert. denied, ___ U.S. ___, 69 U.S.L.W. 3364
(U.S. Nov. 27, 2000) (No. 00-6746).
Epps did not raise before the district court that his career offender
status was in error because a prior conviction was allegedly unconsti-
tutional. Thus, this court reviews for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). There
was no error because Epps cannot collaterally challenge a predicate
conviction used to enhance the sentence under the sentencing guide-
lines. United States v. Bacon, 94 F.3d 158, 161-62 (4th Cir. 1996).
In accordance with the requirements of Anders, we have considered
the entire record on appeal and find that there was no reversible error.
Accordingly, we affirm the convictions and sentences. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further 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. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED