UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4566
WILLIAM WOODREW SMITH, JR., a/k/a
Bubba,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CR-01-16)
Submitted: January 8, 2002
Decided: January 22, 2002
Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, James Ashford
Metcalfe, Assistant United States Attorney, Michael Steven Dry,
Third-Year Law Student, Norfolk, Virginia, for Appellee.
2 UNITED STATES v. SMITH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
William Woodrew Smith, Jr., pled guilty to possession of a stolen
firearm, in violation of 18 U.S.C.A. §§ 922(j), 924(a)(2) (West 2000)
(Count 1); and possession with intent to distribute marijuana, in viola-
tion of 21 U.S.C.A. § 841 (West 1999 & Supp. 2001) (Count 4). The
district court sentenced Smith to consecutive eighty-five-month terms
of imprisonment. Smith appeals, challenging his eighty-five-month
sentence on Count 4 and the validity of his guilty plea. The Govern-
ment has moved to dismiss the appeal based upon Smith’s waiver of
his right to appeal his sentence. We affirm in part and dismiss in part.
In his plea agreement, Smith waived the right to appeal his sen-
tence on any ground whatsoever. The district court accepted Smith’s
guilty plea at a hearing conducted in accordance with Rule 11 of the
Federal Rules of Criminal Procedure. We have reviewed Smith’s plea
agreement and the Rule 11 colloquy and find that Smith made a
knowing and voluntary waiver of his right to appeal his sentence on
Count 4. See United States v. Brown, 232 F.3d 399, 402-03 (4th Cir.
2000) (providing standard).
Although Smith contends that the waiver is unenforceable because
his sentence violates the rule announced in Apprendi v. New Jersey,
530 U.S. 466 (2000), and that he should have been sentenced under
the one-year statutory maximum for marijuana offenses set forth in 21
U.S.C.A. §§ 841(b)(4), 844 (West 1999), we do not agree. Smith’s
eighty-five-month sentence falls within the ten-year statutory maxi-
mum sentence applicable to offenses involving less than fifty kilo-
grams of marijuana that were committed by a person, like Smith, who
has a prior conviction for a felony drug offense. See 21 U.S.C.A.
§ 841(b)(1)(D); see, e.g., United States v. Nordby, 225 F.3d 1053,
1059 (9th Cir. 2000) (holding that prescribed statutory maximum for
single conviction under § 841 for undetermined amount of marijuana
UNITED STATES v. SMITH 3
is five years). Because the sentence on Count 4 does not exceed the
statutory maximum, we grant the Government’s motion to dismiss
Smith’s appeal of his sentence and dismiss this portion of the appeal.
See United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992).
Smith also challenges the validity of his guilty plea on the ground
that the district court, by relying on his admissions at sentencing as
to drug amounts, violated the term of the plea agreement that pro-
vided that truthful information from Smith would not be used to
enhance his guideline range. Contrary to Smith’s assertion, the admis-
sions on which the court relied served to reduce the amount of drugs
for which Smith was held accountable from the amount attributed to
him in the presentence report. We therefore find that Smith is not
entitled to relief on this claim.
Accordingly, we affirm in part and dismiss in part. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART AND DISMISSED IN PART