UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYLE EDWARD ROBERTSON, a/k/a Tiger,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:01-cr-00304-JFM)
Submitted: October 24, 2007 Decided: November 19, 2007
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Donald E. Kaplan, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, John F. Purcell, Jr., Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryle Robertson appeals his conviction and 360-month
sentence pursuant to a guilty plea to one count of conspiracy to
distribute and possess with intent to distribute fifty grams of
more of cocaine base, five or more kilograms of cocaine, and one
kilogram or more of heroin, in violation of 21 U.S.C. § 846 (2000).
On appeal, Robertson argues that his guilty plea was involuntary.
Finding no reversible error, we affirm.
Because Robertson did not move in the district court to
withdraw his guilty plea, his challenge to the adequacy of the Fed.
R. Crim. P. 11 hearing is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that
“plain error analysis is the proper standard for review of
forfeited error in the Rule 11 context”). This analysis requires
the court to determine whether there was error, whether the error
was plain, and whether it affected the defendant’s substantial
rights. Id. at 524. If a defendant establishes these
requirements, the court’s “discretion is appropriately exercised
only when failure to do so would result in a miscarriage of
justice, such as when the defendant is actually innocent or the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Hughes, 401
F.3d 540, 555 (4th Cir. 2005) (internal quotation marks and
citation omitted).
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On appeal, Robertson argues that his guilty plea was
neither knowing nor voluntary, because the trial count “did not
find a factual basis for [Robertson’s] stipulation to an offense
level of 43,” as required by Rule 11(b)(3) and Apprendi v. United
States, 530 U.S. 466, 497 (2000). In essence, Robertson contends
that because he was sentenced pursuant to U.S. Sentencing
Guidelines Manual, § 2A1.1 (2002), cross-referenced from USSG
§ 2D1.1(d)(1), he faced an increased potential penalty--death--
rather than the life sentence he could have faced if not for the
judge’s decision to apply USSG § 2A1.1. However, a court may only
impose a death sentence under USSG § 2A1.1 if the underlying
conviction is for violation of 21 U.S.C. § 848(e) (2000). USSG
§ 2A1.1 cmt. n.2. Robertson was not convicted of violating
§ 848(e).
Moreover, Apprendi does not reach a judge’s determination
as to facts impacting the determination of a sentence, provided the
resulting sentence is within the statutory maximum authorized by
the elements charged in the indictment. United States v. Promise,
255 F.3d 150, 156 n.5 (4th Cir. 2001); see also United States v.
Kinter, 235 F.3d 192, 202 (4th Cir. 2000) (general sentencing
enhancements under sentencing guidelines do not violate Apprendi
when sentence is within maximum prescribed in United States Code).
The statutory maximum for violation of § 846 is life imprisonment.
Robertson was sentenced within the statutory maximum, and
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therefore, the district court’s reliance on § 2A1.1 does not give
rise to an Apprendi error.
The district court complied with the requirements of Rule
11 when it accepted Robertson’s guilty plea. The court ensured
Robertson was competent to take a plea by asking him questions
regarding his age, education, and background and inquiring whether
he was under the effect of drugs or alcohol. The court asked
whether anyone had threatened or forced Robertson to plead guilty,
to which Robertson responded no. The court ensured Robertson had
enough time to speak to his attorney and was satisfied with his
attorney. The court informed Robertson of the constitutional
rights relating to trial he was relinquishing and Robertson stated
he waived those rights.
The court informed Robertson of the nature of the charge
and the elements the Government would have to prove, the minimum
and maximum penalty, and the effect of supervised release. The
court explained relevant conduct, that Robertson could be held
responsible for acts of co-conspirators, and that such conduct
could be used to enhance his sentence.
The court also went over the plea agreement, specifically
noting that it contained a stipulated total offense level of 41, an
agreed upon sentence of 360 months’ imprisonment, and that
Robertson waived his right to appeal his sentence and to
collaterally attack his conviction and sentence. The court
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informed Robertson that, pursuant to Rule 11(e)(1)(c), if it did
not impose the sentence contained in the agreement, Robertson would
have the right to withdraw his guilty plea. Robertson agreed to
the stipulation of facts contained in the plea agreement. The
court found Robertson was fully competent and capable of entering
an informed plea and that his plea was knowing and voluntary.
Therefore, the district court’s acceptance of Robertson’s guilty
plea was not plain error.
Accordingly, we affirm Robertson’s conviction and
sentence. 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
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