UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4568

DEREK EUGENE POPEJOY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, District Judge.

(CR-98-66-V)

Argued: February 27, 2002

Decided: July 17, 2002

Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: J. Steven Brackett, J. STEVEN BRACKETT LAW

OFFICE, Hickory, North Carolina, for Appellant. Gretchen C.F.

Shappert, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee. ON BRIEF: Mark T. Calloway, United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North

Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Derek Eugene Popejoy appeals his sentence for conspiracy to possess marijuana with the intent to distribute, see 21 U.S.C.A. § 846

(West 1999). We affirm. 

I.

Popejoy was indicted for conspiracy "to possess with intent to distribute, a quantity of marijuana." J.A. 15. Before trial, defense counsel

contacted the prosecutor and asserted that Popejoy was not involved

in the conspiracy but was merely present when others engaged in illegal activities; nevertheless, he stated that Popejoy would plead guilty

under certain conditions. The parties failed to reach an agreement,

however, and Popejoy was convicted by a jury. 

At sentencing, Popejoy adhered to his previously declared position

that he was not involved in the charged conspiracy, although the conspirators were his friends and he was occasionally present while they

engaged in drug trafficking. He further asserted that the activities of

which he was aware involved far less marijuana than was attributed

to him in the presentence report (PSR); whereas the guideline calculations in the PSR were based on more than 2,000 pounds of marijuana,

Popejoy claimed that the appropriate figure was closer to 240 pounds.

Finally, Popejoy sought a reduction in his offense level based on

acceptance of responsibility. See U.S. Sentencing Guidelines Manual

§ 3E1.1 (1998). The district court found Popejoy responsible for the

smaller quantity of marijuana, denied the § 3E1.1 reduction, and sentenced Popejoy to 72 months imprisonment. 

II.

Popejoy contends that the district court erred in refusing to reduce

his offense level based on acceptance of responsibility. He argues that

2 UNITED STATES v. POPEJOY
he has only contested the amount of marijuana attributed to him and

that, in light of the finding in his favor at sentencing, his position

reflects an accurate assessment of his culpability rather than a blanket

denial of guilt. The record does not support this argument. On the

contrary, Popejoy has consistently asserted his innocence, maintaining that he was merely present while others engaged in drug trafficking. Because he has never conceded his factual guilt, which was

established only after a trial by jury, we affirm the decision of the district court to deny a § 3E1.1 deduction. See United States v. Dickerson, 114 F.3d 464, 469-70 (4th Cir. 1997). 

III.

In addition to the issue raised by Popejoy, we also consider

whether his 72-month sentence should be vacated pursuant to

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

Promise, 255 F.3d 150 (4th Cir. 2001) (en banc), cert. denied, 122

S. Ct. 2296 (2002). It is undisputed that this sentence is unlawful

because the indictment against Popejoy did not specify any quantity

of marijuana; thus, the statutory maximum applicable to the charged

offense was 60 months. See 21 U.S.C.A. § 846 (providing that a drug

trafficking conspiracy is subject to the same penalty as the offense

intended by the conspiracy); 21 U.S.C.A. § 841(b)(1)(D) (West Supp.

2002) (establishing a 60-month maximum for distribution of less than

50 kilograms of marijuana). The question we must consider is

whether to correct this unlawful sentence even though Popejoy has

not challenged it.*

This court, like other courts of appeals, has suggested that it has the

power to correct an error sua sponte if it amounts to plain error under

Federal Rule of Criminal Procedure 52(b). See United States v. Childress, 26 F.3d 498, 502 (4th Cir. 1994); see also, e.g., United States

v. Graham, 275 F.3d 490, 521-22 (6th Cir. 2001), cert. denied, 122

S. Ct. 1625 (2002). This is the same standard that applies to questions

raised on appeal after being forfeited in the district court. Arguably,

*Popejoy has argued that his sentence is unlawful, but only after we

requested supplemental briefs on this issue. We do not believe this transforms the claim from one raised sua sponte into one properly raised by

the Appellant. 

UNITED STATES v. POPEJOY 3
we should apply a more exacting standard in light of our general

refusal to consider issues not raised and properly argued in the appellant’s opening brief. See, e.g., McCarver v. Lee, 221 F.3d 583, 588

n.1 (4th Cir. 2000) (declining to consider issues mentioned but not

argued in briefs); Lewis v. INS, 194 F.3d 539, 547 n.9 (4th Cir. 1999)

(declining to consider issue first raised in reply brief). 

We need not decide that question, however, because we conclude

that even the ordinary plain error standard would bar relief here.

Popejoy has admitted that he was aware of roughly 240 pounds of

marijuana being handled by the conspiracy he was convicted of participating in. This far exceeds the threshold for imposition of a sentence exceeding 60 months. See 21 U.S.C.A. § 841(b)(1)(C) (West

Supp. 2002) (establishing 20-year maximum for offenses involving

more than 50 kilograms of marijuana). The "overwhelming and

uncontroverted evidence" provided by Popejoy’s admission precludes

us from overturning his sentence. United States v. Cotton, 122 S. Ct.

1781, 1787 (2002). 

IV.

For the foregoing reasons, we affirm Popejoy’s conviction and sentence.

AFFIRMED

4 UNITED STATES v. POPEJOY