United States of America v. DOE BOY a/k/a Clinton French a/k/a Christopher Williams Clemons a/k/a Chris Clemons…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 00-4415
UNITED STATES OF AMERICA
v.
DOE BOY a/k/a Clinton French a/k/a Christopher
Williams Clemons a/k/a Chris Clemons a/k/a
Chris Collins
Christopher Williams Clemons, a/k/a "Chris Clemons,"
a/k/a "Doe Boy," a/k/a "Clinton French," a/k/a
"Chris Collins,"
Appellant
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 99-cr-00082-1)
District Judge: Hon. Roderick R. McKelvie
Submitted Under Third Circuit LAR 34.1(a)
February 4, 2002
Before: SLOVITER, AMBRO, Circuit Judges, and POLLAK, District Judge*
(Filed: February 5, 2002)
MEMORANDUM OPINION OF THE COURT
___________________________________
* Hon. Louis H. Pollak, Senior United States District Judge for the Eastern District of
Pennsylvania, sitting by designation. SLOVITER, Circuit Judge.
Christopher Clemons, a/k/a Doe-Boy, appeals from his judgment of sentence and
convictions for possession with intent to distribute cocaine and carrying a firearm during
a drug trafficking felony. Clemons’ counsel filed a vigorous brief which states it was
filed under the aegis of Anders v. California, 386 U.S. 738 (1967). He also filed a motion
for leave to withdraw from representing Clemons, expressing counsel’s belief that all of
Clemons’ grounds for appeal are frivolous. Clemons, who was notified by this court of
the opportunity to file a pro se brief, failed to do so. Because counsel’s brief did not
explain why the arguments made are frivolous, this court asked counsel to explain further.
Counsel then filed a reply brief, which states that the District Court neither erred nor
abused its discretion as to the various issues raised in the principal brief. After reviewing
the various briefs, we will affirm the judgment of conviction and sentence and grant
counsel’s motion to withdraw.
I.
Clemons presents seven arguments. He first argues that the District Court erred in
denying his motion to dismiss the indictment pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), because the indictment did not allege a specific weight of crack cocaine.

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In our recent en banc decision, United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001), we
held "that an Apprendi violation only occurs if the drug quantity is not found by a jury
beyond a reasonable doubt and the defendant’s sentence under 841 exceeds 20 years."
Id. at 98. Clemons’ sentence under 841 did not exceed twenty years.
Second, Clemons argues he should have been granted a new trial based on newly
discovered evidence to the effect that he was searched without a warrant after he was
arrested. Searches conducted incident to a lawful arrest of a suspect’s person and the area
of his immediate control do not violate the Fourth Amendment. See, e.g., Illinois v.
Lafayette, 462 U.S. 640, 644 (1983).
Third, Clemons argues the District Court erred in denying him a two level
reduction in offense level for his acceptance of responsibility under U.S.S.G. 3E1.1(a).
Clemons points us to no testimony or action reflecting an acceptance of responsibility.
Given the "’great deference on review’" we accord to trial judges under 3E1.1(a), this
court discerns no error. See United States v. Cohen, 171 F.3d 796, 804 (3d Cir. 1999)
(quoting U.S.S.G. 3E1.1 application note 5).
Fourth, Clemons argues the trial court erred in denying his motion to dismiss every
sentencing enhancement under Apprendi because no prior drug felony convictions were
alleged in the indictment, and the government did not prove any prior felony drug
convictions at trial. Where, as here, a defendant’s ultimate sentence does not exceed the
prescribed statutory maximum, a court need not enquire whether the enhanced sentence
was based on the fact of a prior conviction. United States v. Mack, 229 F.3d 226, 238-39
(3d Cir. 2000).
Fifth, Clemons argues he was entitled to notice of a sentencing enhancement
pursuant to 21 U.S.C. 851(a)(1) for his prior felony convictions. However, "when a
defendant is not being sentenced pursuant to a 851 statutory enhancement i.e., one that
exceeds the statutory maximum embodied in the Guideline’s sentencing ranges the
defendant is not entitled to rely on the procedural protections contained in 851." United
States v. Escobales, 218 F.3d 259, 263 (3d Cir. 2000) (emphases omitted). Clemons was
not sentenced pursuant to a 851 statutory enhancement.
Sixth, Clemons argues the District Court abused its discretion by declining to
depart downward based on Clemons’ pretrial confinement at Gander Hill, a local
Delaware prison, under allegedly substandard conditions. We have held on numerous
occasions that we are without jurisdiction to review discretionary refusals to depart
downward where the district court "fully understood the scope of its discretion to depart
from the Guidelines." United States v. Sally, 116 F.3d 76, 79 (3d Cir. 1997).
Seventh, Clemons argues the District Court erred in calculating Clemons’ base
offense on the basis of Clemons’ possession of cocaine base, or "crack," rather than
cocaine, pursuant to U.S.S.G. 2D1.1(c) and the definition of cocaine base contained in
Note D to that table. Given the government chemist’s testimony and the testimony of the
drug officer, the District Court did not clearly err in determining the substance was
cocaine base.
II.
Convinced by the reasoning proffered in counsel’s reply brief of the frivolity of
Clemons’ seven arguments, and having found no nonfrivolous issues for appeal upon our
independent review, we will affirm the convictions and sentence of the District Court, and
will grant counsel’s motion to withdraw.
____________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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