UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5192
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS DARRELL WHITEHEAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:10-cr-00213-F-1)
Submitted: May 20, 2013 Decided: May 30, 2013
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demetrius Darrell Whitehead pled guilty, pursuant to a
written plea agreement, to possession with intent to distribute
five grams or more of crack cocaine, 21 U.S.C. § 841(a)(1)
(2006) (Count One); possession of a firearm in furtherance of a
drug trafficking offense, 18 U.S.C. § 924(c)(1)(A) (2006) (Count
Five); and being a felon in possession of a firearm, 18 U.S.C.
§ 922(g) (2006) (Count Six). The plea agreement provided that
the Government promised that it would “make known to the Court
at sentencing the full extent of the Defendant’s cooperation,
but the United States is not promising to move for a departure
or sentence reduction.” However, at Whitehead’s sentencing
hearing, when the district court asked the Government, “Did the
government promise to make known this man’s assistance, if
any?,” the Government replied (mistakenly), “No, Your Honor.”
Whitehead’s counsel did not object, nor did he note any
objections to the presentence report, which was adopted by the
court.
Based on a total offense level of 29 and criminal
history category of VI, Whitehead’s advisory sentencing range
for Count One was 151-188 months; for Count Five, 60 months; and
for Count Six, 120 months. The court imposed 188 months as to
Count One, and 120 months as to Count Six, to run concurrently.
The 60-month sentence imposed on Count Five was ordered to run
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consecutively, for a total term of 248 months. The court also
imposed a five-year term of supervised release on Counts One and
Five, and three years on Count Six, all to run concurrently.
At the conclusion of the court’s pronouncement of
sentence, the Government’s attorney added: “Your Honor, just
for clarification of the record, the Government would like to
note that Mr. Whitehead was debriefed. The information has not
resulted in any federal indictments. He did provide information
with regard to [a cold case murder investigation]. He may be a
witness in that case. The witness list has not yet been
confirmed.” Whitehead noted a timely appeal.
Whitehead argues, first, that the Government breached
the plea agreement when it failed to advise the court of the
“full extent” of his cooperation with law enforcement. Because
he did not object below, our review is for plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993). We find that
there was no error, let alone plain error. Although, as the
Government concedes, it failed to advise the court at the
beginning of the sentencing hearing about its obligation under
the plea agreement, Whitehead’s cooperation was known to the
court. First, the Government corrected its error, albeit after
sentence had been pronounced, but the court still could have
reduced Whitehead’s sentence at that time, if it was so
inclined. Also, the court was well aware of Whitehead’s
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cooperation, as it was discussed at length during his attorney’s
argument for a continuance. Moreover, Whitehead’s four prior
motions for continuance all detailed his cooperation in the
murder investigation. And, in any event, Whitehead cannot show
that his substantial rights were affected because, given the
district court’s denial of his motion for a continuance, he
cannot show that his sentence would have been less had the
Government’s timing been different. See United States v.
Hooten, 942 F.2d 878, 883 (5th Cir. 1991) (noting that
government’s failure to inform a sentencing court of the
defendant’s assistance does not constitute reversible error if
the court is generally aware of the defendant’s cooperation and
the extent thereof).
Next, Whitehead argues that the district court erred
in sentencing him to five years of supervised release because,
under the Fair Sentencing Act, his maximum term is three years.
According to Whitehead, because his offense now carries a
maximum sentence of twenty years, it is classified as a Class C
felony under 18 U.S.C. § 3559(a)(3) (2006). Under 18 U.S.C.
§ 3583(b)(2) (2006), a Class C felony carries no more than a
three-year term of supervised release. Whitehead is incorrect.
Section 3583(b) is prefaced with the phrase, “[e]xcept
as otherwise provided.” Section 841(b)(1)(C) clearly provides
that: “Notwithstanding section 3583 of Title 18, any sentence
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imposing a term of imprisonment under this paragraph shall, in
the absence of such a prior conviction, impose a term of
supervised release of at least 3 years in addition to such term
of imprisonment.” Therefore, three years is the minimum term of
supervised release and Whitehead’s reliance on 18 U.S.C. § 3583
simply ignores the above language in § 841(b)(1)(C).
Accordingly, we affirm Whitehead’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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