UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4202
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID PATRICK WORRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-03-49)
Submitted: August 1, 2005 Decided: August 17, 2005
Before WILLIAMS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New Bern,
North Carolina, for Appellant. Frank D. Whitney, United States
Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
David Patrick Worrell pled guilty to possession with
intent to distribute cocaine and possession with intent to
distribute heroin, both in violation of 21 U.S.C. § 841(a)(1)
(2000). He was sentenced to 151 months’ imprisonment. On appeal,
he argues that: (1) the district court erred in denying his motion
to suppress without a hearing; (2) the district court erred in
denying his motion for a downward departure on the ground that his
criminal history category and career offender status over-
represented the seriousness of his past criminal conduct; (3) the
district court erred in denying his motion for a downward departure
based on a “fast-track” plea agreement; and (4) the district
court’s determination that Worrell was a career offender violated
his Sixth Amendment right to a jury under Blakely v. Washington,
542 U.S. 296 (2004). For the reasons that follow, we affirm in
part and dismiss in part.
Worrell first argues on appeal that the district court
should have held a hearing on his pro se motion to suppress and
that the court erred in denying the motion. Rule 11(a)(2) of the
Federal Rules of Criminal Procedure requires the consent of the
court and the government in order for a defendant to enter a
conditional plea of guilty and reserve his right to appeal an
adverse determination of a pre-trial motion. If the requirements
of Rule 11(a)(2) are not met, the defendant is foreclosed from
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appealing non-jurisdictional defects, including the denial of a
motion to suppress. Tollett v. Henderson, 411 U.S. 258, 267
(1973); United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993).
Because Worrell has not met the requirements of Rule 11(a)(2), we
find that Worrell is foreclosed from appealing the denial of his
motion to suppress.
Worrell next argues that the district court erred in
denying his motion for a downward departure, pursuant to U.S.
Sentencing Guidelines Manual § 4A1.3 (2003), on the basis that his
career offender status and criminal history category over-
represented the seriousness of his criminal history. The district
court’s decision not to depart below the guideline range is not
reviewable on appeal unless it is based on a mistaken belief that
the court lacks authority to depart. United States v. Carr, 271
F.3d 172, 176-77 (4th Cir. 2001). Because it is clear in this case
that the district court understood its authority to depart and
simply chose not to, we dismiss this claim.
Worrell also maintains that the district court erred in
its decision not to consider a “fast track” plea agreement which
could have resulted in a two-level reduction in his sentence.
Here, the district court denied the motion for a downward departure
on the basis of a “fast-track” plea, finding that it lacked the
authority to depart. If a district court concludes that it lacks
authority to grant a downward departure as a matter of law, that
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ruling is reviewed de novo. United States v. Hall, 977 F.2d 861,
863 (4th Cir. 1992). We conclude that the district court properly
determined that it lacked the authority to depart and therefore
dismiss this portion of the appeal.
Last, citing Blakely v. Washington, 542 U.S. 296 (2004),
Worrell maintains that the district court violated his Sixth
Amendment rights by imposing a sentence enhanced by his designation
as a career offender on facts not alleged in the indictment,
admitted by him, or found by a jury beyond a reasonable doubt.
Specifically, Worrell claims that the district court’s
determination that his prior convictions for possession with intent
to distribute CDS and possession with intent to distribute cocaine
qualified as “controlled substance offenses” under USSG § 4B1.2
constituted impermissible judicial fact-finding because it required
the court to find he had a “specific type of prior conviction.”
Because Worrell did not raise his Sixth Amendment claim
below, we review the district court’s sentence for plain error.
United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Under the
plain error standard, Worrell must show: (1) there was error;
(2) the error was plain; and (3) the error affected his substantial
rights. Olano, 507 U.S. at 732-34. Even when these conditions are
satisfied, this court may exercise its discretion to notice the
error only if the error “seriously affect[s] the fairness,
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integrity or public reputation of judicial proceedings.” Id. at
736 (internal quotation marks omitted).
We find that Worrell’s career offender designation does
not violate the Sixth Amendment. See Shepard v. United States, 125
S. Ct. 1254, 1262-63 (2005) (holding that Sixth Amendment
protections apply only to disputed facts about a prior conviction);
see also United States v. Harp, 406 F.3d 242, 247 (4th Cir. 2005)
(declining to notice any error in a career offender sentence on
review for plain error because defendant “had no legitimate defense
to career offender designation”).
In light of the above, we affirm Worrell’s conviction and
sentence and dismiss the appeal as to the court’s denial of his
motions for a downward departure. 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 IN PART; DISMISSED IN PART
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