UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4352

ROHAN ST. AURBYN LEMON, a/k/a

Jimmy Lemon,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CR-98-62-PJM)

Submitted: December 21, 2000

Decided: March 12, 2001

Before WILKINS, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

David B. Smith, ENGLISH & SMITH, Alexandria, Virginia; Jeffrey

D. Zimmerman, Alexandria, Virginia, for Appellant. Lynne A. Battaglia, United States Attorney, Stuart A. Berman, Assistant United

States Attorney, James M. Trusty, 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Unpublished opinions are not binding precedent in this circuit.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: 

Rohan St. Aurbyn Lemon, a/k/a "Jimmy Lemon," appeals his sentence of 188 months’ imprisonment for two counts of drug trafficking

violations, 18 U.S.C.A. §§ 841(a), 846 (West 1999). He does not

appeal the underlying convictions for the drug trafficking offenses or

four related convictions and sentences for customs fraud and making

false statements. We therefore affirm his conviction as to all six

counts of the indictment and judgment and affirm the sentences to

counts three through six for the customs and false statement offenses.

Lemon raises four issues on appeal regarding the calculation of

drug quantity attributable to him and a sentencing enhancement for

serving a managerial role under U.S. Sentencing Guidelines Manual

§ 3B1.1(b) (1998). We have carefully reviewed each claim and finding no reversible error, we affirm. 

First, Lemon argues that his sentences on the drug offenses are

unlawful because the drug quantity involved in the offenses was neither charged in the indictment nor submitted to a jury and proved

beyond a reasonable doubt. Because Lemon failed to raise this argument before the district court, our review is for plain error. See Fed.

R. Crim. P.52(b); United States v. Olano, 507 U.S. 725, 731-32

(1993). For this Court to notice plain error, Lemon must demonstrate

that an error occurred, that the error was plain, and that the error

affected his substantial rights. See Olano, 507 U.S. at 732. 

While this appeal was pending, the Supreme Court, in Apprendi v.

New Jersey, 530 U.S. 466 (2000), held as a principle of constitutional

law that, except for "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." Id. at 2362-63. In this case, the amount of marijuana was not

2 UNITED STATES v. LEMON
alleged in the indictment or submitted to the jury; therefore, pursuant

to 21 U.S.C.A. § 841(b)(1)(D) (West 1999), the maximum sentence

Lemon faces on each count without regard to drug quantity is five

years. See United States v. Kinter, 235 F.3d 192 (4th Cir. 2000);

United States v. Lewis, 235 F.3d 215 (4th Cir. 2000). 

In the case of multiple counts of conviction, the guidelines instruct

that if the total punishment mandated by the guidelines exceeds the

highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total

punishment. See U.S.S.G. § 5G1.2(d); United States v. White, ___

F.3d ___, 2001 WL 87453, at *4 (4th Cir. Feb. 1, 2001) (No. 99-

4578). Because "§ 5G1.2(d) requires the imposition of consecutive

terms on each count until the guideline punishment is achieved," see

White, 2001 WL 87453, at *4, Lemon’s substantial rights were not

affected. Accordingly, we find no plain error. 

Lemon also challenges the district court’s calculation of drug quantity, conversion of cash and real property into equivalent weight of

marijuana, and application of a three-level enhancement for managerial role in the conspiracy. We review these claims for clear error. See

United States v. Love, 134 F.3d 595, 606 (4th Cir. 1998) (holding factual determinations of drug quantity are reviewed for clear error);

United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989) (holding application of sentence enhancement is reviewed for clear error).

We have reviewed the record and find no reversible error as to these

claims. 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

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