UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4514

ALVIN WAYNE HARDESTY, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CR-98-299-AW)

Submitted: June 5, 2002

Decided: July 22, 2002

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam

opinion. 

COUNSEL

Marvin D. Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Lynne A. Battaglia, United States

Attorney, Odessa P. Jackson, Assistant United States Attorney,

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c). 

OPINION

PER CURIAM: 

Alvin Wayne Hardesty, Jr., pled guilty to possession with intent to

distribute crack cocaine, in violation of 21 U.S.C.A. § 841 (West

1999 & Supp. 2002). The district court sentenced Hardesty to a 292-

month prison term to be followed by five years of supervised release.

On appeal, Hardesty contends that the district court abused its discretion in denying his motion to withdraw his guilty plea, that he should

have received notice before the court used prior convictions to classify him as a career offender, that his sentence violated the rule

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that

the district court erred in refusing to depart from the sentencing

guideline range. We affirm in part and dismiss in part. 

Hardesty first challenges the district court’s conclusion that he

failed to articulate a "fair and just reason" to withdraw his guilty plea.

Hardesty claims that counsel misinformed him regarding the applicable criminal history category and that counsel failed to realize that

Hardesty could be sentenced as a career offender. We have thoroughly reviewed the record and conclude that the district court properly applied the six-factor test in United States v. Moore, 931 F.2d

245, 248 (4th Cir. 1991). Thus, the court did not abuse its discretion

in denying Hardesty’s motion to withdraw his guilty plea. United

States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (stating standard of review). 

Next, Hardesty argues that notice under 21 U.S.C. § 851 (West

1999), is required before punishment can be enhanced for being a

career offender under U.S. Sentencing Guidelines Manual § 4B1.1

(1998). Hardesty’s argument is foreclosed by our decision in United

States v. Foster, 68 F.3d 86, 89 (4th Cir. 1995) (holding that the § 851

notice requirement does not apply when government seeks enhancements under sentencing guidelines, rather than statutory enhancement). Thus, Hardesty is not entitled to relief on this claim. 

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Hardesty also contends that, under Apprendi, the district court

could not sentence him to a term of incarceration greater than the

twenty-year statutory maximum for an unspecified drug amount. We

find no plain error in the district court’s imposition of a 292-month

sentence. Hardesty stipulated in the plea agreement and factual basis

supporting the plea that he abandoned a duffel bag containing 191

grams of crack—nearly four times the threshold drug amount for an

enhanced sentence under § 841(b)(1)(A). See United States v. Cotton,

122 S. Ct. 1781, 1785-86 (2002) (holding that failure to charge drug

quantity in indictment did not affect fairness, integrity, or public reputation of judicial proceedings where evidence was "overwhelming"

and "essentially uncontroverted" that offense involved threshold drug

quantity for enhanced sentence). 

Finally, Hardesty contends that the district court erred in failing to

depart on the ground that his criminal history category overstated the

seriousness of his criminal history or the likelihood that he would

commit further crimes. Because the district court recognized that it

had the authority to depart but chose not to, this claim is not reviewable on appeal. United States v. Edwards, 188 F.3d 230, 239 (4th Cir.

1999) (internal quotation marks and citations omitted). 

Accordingly, we affirm Hardesty’s conviction and sentence and

dismiss his challenge to the district court’s refusal to depart. 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 IN PART AND DISMISSED IN PART

UNITED STATES v. HARDESTY 3