United States v. Kevin Fikes, Jr. , 585 F. App'x 20 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4372
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN ERIC FIKES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:13-cr-00291-NCT-1)
Submitted: October 14, 2014 Decided: October 22, 2014
Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Greg Davis, Assistant
Federal Public Defender, Winston-Salem, North Carolina, for
Appellant. Ripley Rand, United States Attorney, Stephen T.
Inman, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Fikes appeals his sentence of 180 months’
imprisonment imposed after pleading guilty, pursuant to a
written plea agreement, to one count of possession of a firearm
by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2012). Fikes contends that the district court, in designating
him an armed career criminal, (1) plainly erred because his
predicate offenses were neither pleaded in the indictment nor
proven to a jury beyond a reasonable doubt; and (2) erred
because his predicate offenses were consolidated for judgment.
We affirm.
Fikes’s challenge that the district court should not
have sentenced him as an armed career criminal because his
predicate offenses were neither pleaded in the indictment nor
proven beyond a reasonable doubt was not raised in the district
court; we thus review the court’s decision for plain error.
United States v. Olano, 507 U.S. 725, 732 (1993). Fikes must
show (1) an error, (2) that is plain, (3) which seriously
affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 732-36.
We have reviewed the record and conclude that the
district court did not plainly err. “[T]he ‘fact of a prior
conviction’ remains a valid enhancement even when not found by
the jury.” Thompson v. United States, 421 F.3d 278, 282 (4th
2
Cir. 2005); accord Alleyne v. United States, 133 S. Ct. 2151,
2161 (2013).
Fikes’s next challenge, that the district court should
not have sentenced him as an armed career criminal because his
predicate offenses were consolidated for judgment, is reviewed
de novo. United States v. Brandon, 247 F.3d 186, 188 (4th Cir.
2001).
We have reviewed the record and conclude that the
district court did not err on these grounds. Predicate offenses
need not be tried or sentenced separately to be counted as
separate offenses for purposes of the armed career criminal
enhancement. United States v. Samuels, 970 F.2d 1312, 1315 (4th
Cir. 1992).
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
3