UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4568
DEREK EUGENE POPEJOY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, District Judge.
(CR-98-66-V)
Argued: February 27, 2002
Decided: July 17, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: J. Steven Brackett, J. STEVEN BRACKETT LAW
OFFICE, Hickory, North Carolina, for Appellant. Gretchen C.F.
Shappert, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
2 UNITED STATES v. POPEJOY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Derek Eugene Popejoy appeals his sentence for conspiracy to pos-
sess marijuana with the intent to distribute, see 21 U.S.C.A. § 846
(West 1999). We affirm.
I.
Popejoy was indicted for conspiracy "to possess with intent to dis-
tribute, a quantity of marijuana." J.A. 15. Before trial, defense counsel
contacted the prosecutor and asserted that Popejoy was not involved
in the conspiracy but was merely present when others engaged in ille-
gal activities; nevertheless, he stated that Popejoy would plead guilty
under certain conditions. The parties failed to reach an agreement,
however, and Popejoy was convicted by a jury.
At sentencing, Popejoy adhered to his previously declared position
that he was not involved in the charged conspiracy, although the con-
spirators were his friends and he was occasionally present while they
engaged in drug trafficking. He further asserted that the activities of
which he was aware involved far less marijuana than was attributed
to him in the presentence report (PSR); whereas the guideline calcula-
tions in the PSR were based on more than 2,000 pounds of marijuana,
Popejoy claimed that the appropriate figure was closer to 240 pounds.
Finally, Popejoy sought a reduction in his offense level based on
acceptance of responsibility. See U.S. Sentencing Guidelines Manual
§ 3E1.1 (1998). The district court found Popejoy responsible for the
smaller quantity of marijuana, denied the § 3E1.1 reduction, and sen-
tenced Popejoy to 72 months imprisonment.
II.
Popejoy contends that the district court erred in refusing to reduce
his offense level based on acceptance of responsibility. He argues that
UNITED STATES v. POPEJOY 3
he has only contested the amount of marijuana attributed to him and
that, in light of the finding in his favor at sentencing, his position
reflects an accurate assessment of his culpability rather than a blanket
denial of guilt. The record does not support this argument. On the
contrary, Popejoy has consistently asserted his innocence, maintain-
ing that he was merely present while others engaged in drug traffick-
ing. Because he has never conceded his factual guilt, which was
established only after a trial by jury, we affirm the decision of the dis-
trict court to deny a § 3E1.1 deduction. See United States v. Dicker-
son, 114 F.3d 464, 469-70 (4th Cir. 1997).
III.
In addition to the issue raised by Popejoy, we also consider
whether his 72-month sentence should be vacated pursuant to
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 122
S. Ct. 2296 (2002). It is undisputed that this sentence is unlawful
because the indictment against Popejoy did not specify any quantity
of marijuana; thus, the statutory maximum applicable to the charged
offense was 60 months. See 21 U.S.C.A. § 846 (providing that a drug
trafficking conspiracy is subject to the same penalty as the offense
intended by the conspiracy); 21 U.S.C.A. § 841(b)(1)(D) (West Supp.
2002) (establishing a 60-month maximum for distribution of less than
50 kilograms of marijuana). The question we must consider is
whether to correct this unlawful sentence even though Popejoy has
not challenged it.*
This court, like other courts of appeals, has suggested that it has the
power to correct an error sua sponte if it amounts to plain error under
Federal Rule of Criminal Procedure 52(b). See United States v. Chil-
dress, 26 F.3d 498, 502 (4th Cir. 1994); see also, e.g., United States
v. Graham, 275 F.3d 490, 521-22 (6th Cir. 2001), cert. denied, 122
S. Ct. 1625 (2002). This is the same standard that applies to questions
raised on appeal after being forfeited in the district court. Arguably,
*Popejoy has argued that his sentence is unlawful, but only after we
requested supplemental briefs on this issue. We do not believe this trans-
forms the claim from one raised sua sponte into one properly raised by
the Appellant.
4 UNITED STATES v. POPEJOY
we should apply a more exacting standard in light of our general
refusal to consider issues not raised and properly argued in the appel-
lant’s opening brief. See, e.g., McCarver v. Lee, 221 F.3d 583, 588
n.1 (4th Cir. 2000) (declining to consider issues mentioned but not
argued in briefs); Lewis v. INS, 194 F.3d 539, 547 n.9 (4th Cir. 1999)
(declining to consider issue first raised in reply brief).
We need not decide that question, however, because we conclude
that even the ordinary plain error standard would bar relief here.
Popejoy has admitted that he was aware of roughly 240 pounds of
marijuana being handled by the conspiracy he was convicted of par-
ticipating in. This far exceeds the threshold for imposition of a sen-
tence exceeding 60 months. See 21 U.S.C.A. § 841(b)(1)(C) (West
Supp. 2002) (establishing 20-year maximum for offenses involving
more than 50 kilograms of marijuana). The "overwhelming and
uncontroverted evidence" provided by Popejoy’s admission precludes
us from overturning his sentence. United States v. Cotton, 122 S. Ct.
1781, 1787 (2002).
IV.
For the foregoing reasons, we affirm Popejoy’s conviction and sen-
tence.
AFFIRMED