UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4399

KEITH G. MARTIN, a/k/a Beach Boy,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

(CR-97-943)

Submitted: September 30, 2002

Decided: October 23, 2002

Before WILKINS, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Keith G. Martin, Appellant Pro Se. Miller Williams Shealy, Jr.,

OFFICE OF THE UNITED STATES ATTORNEY, Charleston,

South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Keith G. Martin was convicted by a jury of conspiracy to possess

with the intent to distribute and to distribute cocaine and cocaine base,

21 U.S.C. § 846 (2000), and possession with the intent to distribute

cocaine and cocaine base (two separate counts), 21 U.S.C. § 841(a)

(2000). Martin was sentenced to 365 months’ imprisonment for conspiracy to possess with the intent to distribute and to distribute

cocaine and cocaine base, 240 months for possession with the intent

to distribute cocaine, 365 months for possession with intent to distribute cocaine base, and 12 months for contempt, only the latter to run

consecutively. While his appeal was pending in this court, the

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

Defendant’s counsel, however, did not at any time file a supplement

raising any Apprendi issue. On direct appeal, this court affirmed Martin’s drug-related convictions, but vacated Martin’s criminal contempt

conviction, finding no certification or other indication that the contumacious conduct occurred in the actual presence of the judge, and

remanded to the district court for proceedings consistent with Fed. R.

Crim. P. 42(b). United States v. Martin, No. 99-4295, 2001 WL

22910 (4th Cir. Jan. 10, 2001) (unpublished). 

At resentencing, on remand, the district court vacated the contempt

conviction, but reimposed the same sentence that was initially given

with regard to the other convictions. Defense counsel raised no other

issues, except as to whether Martin would get credit for time already

served. The amended judgment was entered on May 11, 2001, again

sentencing Martin to 365 months for conspiracy to possess with intent

to distribute and distribution of cocaine and cocaine base, 240 months

for possession with intent to distribute cocaine, and 365 months for

possession with intent to distribute cocaine base, all to run concurrently. Martin, proceeding pro se, now appeals from the amended

judgment. 

On appeal, Martin first contends that the district court failed to

apply the rule announced in Apprendi during resentencing. Specifically, he maintains that because the indictment against him did not

specify any particular threshold quantity and was therefore not sub2 UNITED STATES v. MARTIN
mitted to a jury, his 365-month sentence exceeds the 20-year statutory

maximum of 21 U.S.C. § 841(b)(1)(C) (2000), as explained in United

States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc), cert.

denied, 122 S. Ct. 2296 (2002). Second, Martin argues that the district

court could correct this plain error under Fed. R. Crim. P. 35. Third,

Martin maintains that counsel was ineffective for failing to move to

correct the illegal sentence at resentencing. 

Because the indictment did not properly charge Martin with an

aggravated drug offense sufficient to support his sentence and

because Martin did not object to his sentence below, this court

reviews for plain error whether Martin’s enhanced sentence was erroneous. United States v. Cotton, 122 S. Ct. 1781, 1785 (2002). To find

plain error, this Court must find that an error occurred, that the error

was plain, and that the error affected Martin’s substantial rights.

Promise, 255 F.3d at 154. If the first three conditions are met, correction of the error remains within this court’s discretion, which the court

should not exercise unless the error seriously affects "the fairness,

integrity, or public reputation of judicial proceedings." Id. We

assume, without deciding, that an Apprendi claim could have been

raised for the first time at resentencing. 

We need not, however, conduct the plain-error analysis that was

conducted in Cotton because in this case, there are multiple counts of

conviction, and the Sentencing Guidelines require the sentencing

court to impose consecutive sentences to the extent necessary to

achieve a sentence within the guidelines range. U.S. Sentencing

Guidelines Manual § 5G1.2(d) (2000); United States v. White, 238

F.3d 537, 542-43 (4th Cir.), cert. denied, 528 U.S. 1074 (2001). 

Martin was convicted of multiple violations of 21 U.S.C. §§ 841

and 846. The sentences he seeks to appeal do not exceed, in the

aggregate, the applicable statutory maximum penalties even if 20

years were the maximum on each count. Martin was subject to a maximum sentence of 60 years (3 counts multiplied by 20 years maximum for each count), i.e. 720 months. See 21 U.S.C. § 846 (providing

that a drug trafficking conspiracy is subject to the same penalty as the

offense intended by the conspiracy). The sentence imposed is valid

under the stacking reasoning this court articulated in White because

the aggregate statutory maximum for each count is 720 months, while

UNITED STATES v. MARTIN 3
Martin’s concurrent sentences total only 365 months, which was

within the guideline range of 292-365 months. Under White, such

stacking, even if not expressly articulated, does not violate Martin’s

substantial rights, and therefore his sentence was proper. White, 238

F.3d at 541-43. In light of this disposition, we find it unnecessary to

address Martin’s claim regarding the district court’s ability to recognize the error under Fed. R. Crim. P. 35, and his ineffective assistance

of counsel claim. See United States v. DeFusco, 949 F.2d 114, 120

(4th Cir. 1991) (generally, claims of ineffective assistance of counsel

will not be considered on direct appeal unless counsel’s ineffectiveness conclusively appears on the face of the record). 

Accordingly, we affirm Martin’s sentence. 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

4 UNITED STATES v. MARTIN