United States of America v.  Clark Proctor, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4015 
CLARK PROCTOR, JR.,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-00-6)
Submitted: April 25, 2002
Decided: May 6, 2002
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Phillip E. Lewis, MATTHEWS LAW FIRM, Hickory, North Caro-
lina, for Appellant. Robert J. Conrad, Jr., United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Clark Proctor, Jr., appeals his sentence for conspiracy to possess
cocaine base with the intent to distribute and possession of cocaine
base with intent to distribute, in violation of 21 U.S.C.A. §§ 841, 846
(West 1999 & Supp. 2001). Finding no error, we affirm Proctor’s sen-
tence.
Proctor contends his concurrent 360-month sentences are invalid
under Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Proc-
tor’s sentence is not above the thirty year statutory maximum of
§ 841(b)(1)(C) applicable where the defendant has at least one quali-
fying prior conviction. See United States v. Dinnall, 269 F.3d 418
(4th Cir. 2001); United States v. Promise, 255 F.3d 150 (4th Cir.
2001) (en banc), petition for cert. filed, (U.S. Sept. 20, 2001) (No. 01-
6398). Moreover, contrary to Proctor’s contention, Apprendi does not
apply to judicial fact finding under the guidelines. United States v.
Kinter, 235 F.3d 192, 199-201 (4th Cir.), cert. denied, ___ U.S. ___,
121 S. Ct. 1393 (2001). Thus, we find Apprendi is not implicated and
affirm Proctor’s sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 UNITED STATES v. PROCTOR

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