                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 1 2002
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,             Nos. 01-4058 and 01-4103
          v.                                                (D. Utah)
 QUINTIN ADKINS, a.k.a. Quinton                 (D.C. Nos. 2:99-CR-107-J,
 Adkins,                                            2:99-CR-107-02-J)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ requests for decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). These two appeals are, therefore, submitted

without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Quintin Adkins, a federal prisoner appearing pro se, has filed two appeals

of his sentence (actually, his re-sentence) for violation of 21 U.S.C. § 841(a) and

(b)(1)(B) and 18 U.S.C. § 2 (possession, with intent to distribute, of in excess of

one hundred grams of heroin and the aiding and abetting of the same). We reach

the substance of Mr. Adkins’ first appeal (appeal number 01-4058); however,

finding no merit in any of Mr. Adkins’ contentions, we affirm the (re-)sentence

imposed upon Mr. Adkins. Having so concluded and because Mr. Adkins’ second

appeal (appeal number 01-4103) is entirely duplicative of the first appeal, we

dismiss, as moot, the second appeal.



                                I. BACKGROUND

      The United States charged Mr. Adkins with (1) one count of possession of

heroin, with intent to distribute, and the aiding an abetting of the same and (2)

one count of possession of marijuana, with intent to distribute, and the aiding and

abetting of the same. Mr. Adkins pleaded guilty to Count I (the heroin count),

conditioned upon his ability to appeal certain legal issues. In exchange, the

United States successfully petitioned the district court for dismissal of Count II

(the marijuana count). The district court sentenced Mr. Adkins to 188 months of

imprisonment, pursuant to Mr. Adkins’ perceived status as a career offender. Mr.

Adkins appealed his conviction and sentence. We affirmed Mr. Adkins’


                                         -2-
conviction but, upon the United States’ concession that Mr. Adkins did not in fact

satisfy the requisites for classification as a career offender, vacated Mr. Adkins’

sentence and remanded for re-sentencing.     See United States v. Adkins , No. 99-

4184, 2001 WL 15537 (10th Cir. Jan. 8, 2001) (unpublished disposition) (     Adkins

I).

      At re-sentencing, Mr. Adkins advanced three motions. First, Mr. Adkins

requested that the court vacate his conviction based upon an asserted violation of

the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Second, Mr. Adkins, noting that

he pleaded guilty only to the possession, with intent to distribute, of “in excess of

100 grams of heroin,” sought to limit his sentence to that applicable to a quantity

of one hundred-400 grams of heroin. Rec. vol. II, doc. 75, at 4 (Plea Agreement,

filed May 18, 1999). Third, Mr. Adkins sought a downward departure from the

guideline range imposed by the United States Sentencing Guidelines (the

“U.S.S.G.”). Mr. Adkins sought such a departure pursuant to U.S.S.G. §§ 4A1.3

and 5H1.4 (based, respectively, upon (1) Mr. Adkins’ representation that, because

his prior convictions were numerous but relatively minor, Criminal History

Category VI (for purposes of the U.S.S.G.) over-represented his true criminal

history and (2) Mr. Adkins’ asserted chest and back pain, sleep apnea, and

asthma).




                                           -3-
      During the course of a March 22, 2001 re-sentencing hearing, the district

court denied each of Mr. Adkins’ motions. Left facing a guideline range

requiring a sentence of between 110 and 137 months of imprisonment, the district

court sentenced Mr. Adkins to a term of imprisonment of 110 months. Mr.

Adkins promptly filed a notice of appeal on March 26, 2001 (thereby initiating

appeal number 01-4058). On April 9, 2001, the district court formally entered the

judgment by which the court imposed the 110-month sentence. Mr. Adkins,

apparently concerned that his March 26, 2001 notice of appeal would be rejected

as premature, subsequently filed a second notice of appeal (thereby initiating

appeal number 01-4103). In each of his appeals, Mr. Adkins asserts that the

district court erred in denying the motions that he advanced at re-sentencing.



                                 II. DISCUSSION

      Our appellate jurisdiction arises pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742. We consider appeal number 01-4058 on the merits but reject Mr.

Adkins’ assertions of error; we dismiss, as moot, appeal number 01-4103.

A.    Appeal Number 01-4058

      Mr. Adkins need not have been concerned that, because he filed his notice

of appeal subsequent to the district court’s March 22, 2001 sentencing order but

prior to the district court’s April 9, 2001 entry of judgment in regard to that


                                         -4-
sentence, his notice of appeal would be left without effect. Federal Rule of

Appellate Procedure 4(b)(2) explicitly directs: “A notice of appeal filed after the

court announces a decision, sentence, or order – but before the entry of judgment

or order – is treated as filed on the date of and after the entry.” Thus we have

jurisdiction to consider appeal number 01-4058.

       Upon reaching the merits of appeal number 01-4058, however, we reject

each of Mr. Adkins’ contentions of error. Mr. Adkins first claims that the United

States secured his indictment in violation of the Speedy Trial Act, 18 U.S.C. §§

3161-3174. Mr. Adkins, however, raised this issue upon his initial appeal to our

court. In Adkins I , we concluded that “[t]he trial court carefully considered all

the relevant factors in its decision [that the United States could re-indict Mr.

Adkins despite the dismissal of an initial indictment, pursuant to the Speedy Trial

Act] and did not abuse its discretion [in making that decision].”        United States v.

Adkins , No. 99-4184, 2001 WL 15537, at *1 (10th Cir. Jan. 8, 2001) (unpublished

disposition). Ultimately, we reiterated: “We affirm the conviction and sentence

except for the part of the sentence attributable to career offender status.”      Id.

       Our decision, in Adkins I , on the Speedy Trial Act issue controls our

current analysis under the “law of the case” doctrine.       See United States v.

Alvarez , 142 F.3d 1243, 1246-48 (10th Cir. 1998) (explaining that, “when a case

is appealed and remanded, the decision of the appellate court establishes the law


                                             -5-
of the case and ordinarily will be followed by both the trial court on remand     and

the appellate court in any subsequent appeal      ,” with one relevant, though narrow,

exception: “where the [prior] decision was clearly erroneous and would work a

manifest injustice”) (emphasis added). As Mr. Adkins has failed to establish that

our decision in Adkins I was “clearly erroneous and would work a manifest

injustice,” id. at 1247, we reject Mr. Adkins’ contention of error on this point.

       Second, Mr. Adkins makes two related claims regarding the fact that his

sentence is partly based upon his possession, with intent to distribute, of between

400 and 700 grams of heroin, whereas his Plea Agreement only specified that he

was pleading guilty to a crime involving “in excess of 100 grams of heroin.” Rec.

vol. II, doc. 75, at 4 (Plea Agreement, filed May 18, 1999).    1
                                                                    Mr. Adkins insists

that such a sentence violates the terms of his Plea Agreement; Mr. Adkins also

argues that such a sentence is inconsistent with the Supreme Court’s holding in

Apprendi v. New Jersey , 530 U.S. 466 (2000).

       We address Mr. Adkins’ concerns in turn. First, we note that Mr. Adkins’

sentence is, in fact, not inconsistent with the plea into which he entered. Mr.

Adkins’ Plea Agreement simply states that he is pleading guilty to “knowingly

and intentionally possess[ing] in excess of 100 grams of heroin . . .” Rec. vol. II,


       1
         Mr. Adkins does not, however, challenge the reality that, as a purely
factual matter, he is indeed responsible for the possession of between 400 and 700
grams of heroin.

                                            -6-
doc. 75, at 4 (Plea Agreement, filed May 18, 1999). Mr. Adkins was sentenced

for the possession of between 400 and 700 grams of heroin. Since 400 to 700

grams of heroin is a quantity “in excess of 100 grams of heroin,”         id. , Mr. Adkins’

sentence is not inconsistent with his Plea Agreement.          Further, in his Plea

Agreement, Mr. Adkins acknowledged: “I know that the maximum possible

penalty provided for by law for Count I of the Indictment to which I am pleading

guilty . . . is[] a term of imprisonment of . . . life   . . .” and “I know that there is no

appellate review of any lawful sentence imposed under a plea of guilty.”              Id. at 1,

3 (emphasis added). During a colloquy with the district court, Mr. Adkins further

acknowledged: “Yes, sir, it was more than 100 grams.” Rec. vol. IV, at 17 (Tr. of

Mr. Adkins’ Plea, dated May 18, 1999). During the same colloquy, Mr. Adkins

also answered “Yes, sir” after being advised by the court that a guilty plea meant

a term of imprisonment of “[n]ot . . . more than life.”       Id. at 17-18. Finally, Mr.

Adkins answered “Yes, sir” when asked to acknowledge the fact that the Plea

Agreement, as drafted, fully contained any and all promises made by the United

States. Id. at 19-20.

       As to the second aspect of Mr. Adkins’ claim regarding the quantity of

heroin for which he is properly accountable, we note that while some of the

reasoning of Apprendi may seem to bear on Mr. Adkins’ claim, certainly the

holding of Apprendi itself does not require that Mr. Adkins be sentenced only as


                                               -7-
if his crime involved between one hundred and 400 grams of heroin.           Apprendi

simply forbids a court from imposing (except as to sentence enhancements

imposed on account of a prior conviction) a sentence in excess of the statutory

maximum for the crime for which the defendant was charged and convicted.             See

Apprendi , 530 U.S. at 490 (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.”). Here, Mr.

Adkins pleaded guilty to (i.e. was convicted for) violation of a statute for which

the maximum term of imprisonment was forty years.          2
                                                               Mr. Adkins’ sentence is for

110 months’ imprisonment (i.e. nine years and two months). Since 110 months of

imprisonment is not greater than 40 years of imprisonment, Mr. Adkins’ sentence

does not violate the dictates of   Apprendi . See United States v. Sullivan , 255 F.3d

1256, 1265 (10th Cir. 2001) (“[So long as the sentence ultimately imposed

remains below] the [relevant] statutory maximum[,] . . .         Apprendi does not apply

to sentencing factors that increase a defendant’s guideline range . . .”).


       2
         For cases (1) involving in excess of one hundred grams of heroin and (2)
where the defendant has a “prior conviction for a felony drug offense,” 18 U.S.C.
§ 841(b)(1)(B) provides for a maximum sentence of life imprisonment. Mr.
Adkins’ case both involved in excess of one hundred grams of heroin and featured
a defendant (Mr. Adkins) with a prior conviction for a felony drug offense. As
part of Mr. Adkins’ Plea Agreement, however, the United States agreed not to file
a particular notice necessary to trigger § 841(b)(1)(B)’s possibility of life
imprisonment. Hence, the statutory maximum applicable to Mr. Adkins, also via
§ 841(b)(1)(B), is only forty years’ imprisonment.

                                            -8-
       Third and finally, Mr. Adkins claims that the district court erred in

declining to grant a downward departure from the otherwise applicable U.S.S.G.

guideline range. Mr. Adkins asserts that the district court should have departed,

pursuant to U.S.S.G. § 5H1.4, due to Mr. Adkins’ alleged chest and back pain,

sleep apnea, and asthma.   3
                               More particularly, Mr. Adkins argues that the district

court declined to depart based solely on Mr. Adkins’ failure to present evidence

of these conditions and, further, invited Mr. Adkins to return to court with

evidence of such conditions.

       Where a district court is aware of the court’s authority to enter a downward

departure under the U.S.S.G. and, in exercise of that court’s discretion, elects not

to so depart, we are without power to reverse the district court.    See United States

v. Castillo , 140 F.3d 874, 887 (10th Cir. 1998) (“We clarify here that the courts

of appeal[] cannot exercise jurisdiction to review a sentencing court’s refusal to

depart from the sentencing guidelines except in the very rare circumstance that

the district court states that it does not have any authority to depart from the

sentencing guideline range for the entire class of circumstances proffered by the



       3
         Before the district court, Mr. Adkins also sought a downward departure,
pursuant to U.S.S.G. § 4A1.3, based upon the alleged fact that Criminal History
Category VI, the admittedly mathematically correct classification of Mr. Adkins’
criminal history, over-represents Mr. Adkins’ true criminal history due to the
relatively minor nature of some of Mr. Adkins’ prior offenses. Mr. Adkins does
not appeal the district court’s refusal to depart on this ground.

                                             -9-
defendant.”). Here, the district court was clearly aware of the court’s power to

depart, pursuant to § 5H1.4, from the applicable guideline range. The court

commented:

       Well I’ll deny each of the motions. In reference to the one relating to
       physical condition[,] I should note that that matter on occasion has been
       visited before and I’m pleased that [Mr. Adkins has] been able to relieve
       his sleep problem with the use of a standard machine that others have used
       over the years and to note also that in the federal institutions medical
       assistance is available, and I’ll be glad to listen to any additional elocution
       that people are interested in calling to my attention within the wiggle room
       that I have.


Aple’s Br. Attach. C, at 13-14 (Tr. of Sentencing Hr’g, dated Mar. 22, 2001).

The district court’s comments make clear that the court was aware that § 5H1.4

indeed provided some room for a downward departure, that the court was aware

of the general nature of Mr. Adkins’ request for a departure under that section of

the guidelines, and that the court was willing to hear,   at that time , further

evidence regarding the appropriateness of such a departure. We are without

authority to second-guess the district court’s discretionary denial of the requested

departure.



B.     Appeal Number 01-4103

       We dismiss, as moot, Mr. Adkins’ second appeal (appeal number 01-4103).

Mr. Adkins’ second appeal raises arguments identical to those raised in his first


                                            -10-
appeal; indeed, Mr. Adkins filed identical briefs in the two appeals. Having

addressed Mr. Adkins’ arguments via his first appeal, and having rejected each of

those arguments, we now dismiss, as moot, Mr. Adkins’ second appeal.



                               III. CONCLUSION

      Given Mr. Adkins’ pro se status and pursuant to     Haines v. Kerner , 404 U.S.

519, 520-21 (1972) (per curiam), we have liberally construed Mr. Adkins’ filings.

For the reasons stated above, however, we utilize appeal number 01-4058 to

AFFIRM Mr. Adkins’ conviction and sentence; we DISMISS, as moot, appeal

number 01-4103.

                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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