UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4053

THOMAS S. BERRY, a/k/a Edward

Quinones,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-00-120-BO)

Submitted: September 28, 2001

Decided: December 17, 2001

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. John Stuart Bruce, United States Attorney, Anne M.

Hayes, Assistant United States Attorney, Christine Witcover Dean,

Assistant United States Attorney, Raleigh, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Thomas Berry pleaded guilty to one count of possession with intent

to distribute 486.2 grams of crack, in violation of 21 U.S.C.A.

§ 841(a)(1) (West 1999). The district court sentenced Berry to 168

months in prison. Berry timely appealed, arguing that § 841 is unconstitutional. Berry’s argument is that Congress intended the penalty

provisions of 21 U.S.C.A. § 841(b) to be sentencing factors, so that

a judge could determine the drug quantities attributable to a defendant

by a preponderance of the evidence. Berry notes the holding in

Apprendi v. New Jersey, 530 U.S. 466 (2000), that, other than the fact

of a prior conviction, any fact that increases the penalty for a crime

beyond the statutory maximum must be determined by the factfinder

beyond a reasonable doubt. Based on Apprendi, Berry contends that

§ 841 has been void and therefore unconstitutional since its enactment

with respect both to the acts deemed unlawful and to the penalties

applicable to those unlawful acts. 

We affirm Berry’s conviction.1 In United States v. Cernobyl, 255

F.3d 1215 (10th Cir. 2001), the Tenth Circuit recently rejected an

argument virtually identical to Berry’s. The Tenth Circuit’s holding

is consistent with the findings of other Circuits. See United States v.

Martinez, 253 F.3d 251, 256 n.6 (6th Cir. 2001); United States v.

Brough, 243 F.3d 1078, 1080 (7th Cir. 2001), petition for cert. filed,

1The United States argues that, because Berry waived his appellate

rights in his plea agreement, he waived his right to bring this appeal.

Because Berry contends that he was convicted under an unconstitutional

statute, the waiver provision does not preclude his bringing this appeal.

See Menna v. New York, 423 U.S. 61, 62-63 n.2 (1975); Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Richards, 204 F.3d

177, 191 (5th Cir.), cert. denied, 531 U.S. 826 (2000) (holding that a

defendant may not waive his right to appeal a jurisdictional issue). 

2 UNITED STATES v. BERRY
70 U.S.L.W. 3076 (July 17, 2001) (No. 01-89). We agree with our

sister Circuits that Berry’s argument lacks merit.2

We therefore affirm. 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

2Additionally, because Berry’s 168-month sentence is less than the

maximum sentence permitted by 21 U.S.C.A. § 841(b)(1)(C), there was

no Apprendi violation in this case. See United States v. Angle, 254 F.3d

514, 518 (4th Cir. 2001) (en banc). 

UNITED STATES v. BERRY 3