United States of America, Plaintiff-appellee, v. Noel Mckenzie, A/k/a Zeke, Defendant-appellant, 865 F.2d 1260 (4th Cir. 1989)

Noel McKenzie faced a multi-charge indictment for cocaine and marijuana violations. By plea agreement he pled guilty to an offense of marijuana importation but not guilty to other charges.

As a result of the guilty plea, McKenzie was sentenced to 15 years for violation of 21 U.S.C. § 963, a statute dealing with marijuana offenses, which carried a maximum penalty of 40 years imprisonment. McKenzie asserts impermissible conduct on the part of the district judge in considering cocaine charges which were dismissed under the plea agreement when fixing sentence.

It appears, however, that Judge Howard specifically stated he was considering only marijuana matters when he decided upon an appropriate sentence. He said:

Basically I find grounds for sentencing in this case in the first three pages of government's version and it all deals with marijuana.

The sentence was within statutory limits and so in ordinary cases immune to review for sufficiency. United States v. Shavers, 820 F.2d 1375 (4th Cir. 1987). We perceive no extraordinary reasons for departing from that holding.

In addition the government pointed to that part of the plea agreement conferring on the United States Attorney's office:

the right to bring to the Court's attention and the Court has the right to consider all relevant information with regard to Mr. McKenzie's background, character and conduct, including the conduct which underlies Counts 2 and 3 of the indictment [those dealing with cocaine]....

The complaint objecting to consideration by the judge of cocaine trafficking was, therefore, waived.

The judgment is, accordingly,

AFFIRMED.