United States v. Michael Rouse, Jr. , 587 F. App'x 82 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL WAYNE ROUSE, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (4:13-cr-00034-F-1)
Submitted: November 21, 2014 Decided: December 16, 2014
Before WILKINSON, DUNCAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Shailika K. Shah, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Wayne Rouse, Jr., appeals the 212-month armed
career criminal sentence imposed by the district court pursuant
to 18 U.S.C. § 924(e) (2012) following his guilty plea to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2012). On appeal, Rouse contends that the
district court erred in enhancing his sentence on the basis of
his prior state breaking-and-entering convictions. Rouse also
contends that the court erred in enhancing his sentence on the
basis of facts that were not charged in the indictment or
submitted to a jury, in violation of his Fifth and Sixth
Amendment rights. Finding no error, we affirm.
Rouse first asserts that his armed career criminal
designation was based on improper predicate felony convictions.
Specifically, Rouse asserts that his breaking-and-entering
convictions cannot serve as predicate felony convictions because
a plea agreement limited the sentence for each conviction to one
year or less in prison. We disagree.
We review “de novo the question whether a prior state
conviction constitutes a predicate felony conviction for
purposes of a federal sentence enhancement.” United States v.
Valdovinos, 760 F.3d 322, 325 (4th Cir. 2014). A state’s
“sentencing regime, not a plea agreement, determines whether a
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defendant’s conviction is punishable by imprisonment exceeding a
year and so qualifies as a federal sentencing predicate.” Id.
at 326. Here, as Rouse acknowledges, the breaking-and-entering
convictions carried a maximum presumptive sentence of fourteen
months under North Carolina’s structured sentencing regime.
That a plea agreement negotiated the sentences to ten to twelve
months is uncontrolling.
Second, Rouse contends that the district court
violated his Fifth and Sixth Amendment rights by enhancing his
sentence on the basis of prior convictions that were not alleged
in the indictment, submitted to a jury, or admitted by Rouse.
This claim, as Rouse acknowledges, is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 228-35 (1998). See
United States v. McDowell, 745 F.3d 115, 124 (4th Cir.) (stating
that “Almendarez-Torres remains good law”), petition for cert.
filed, __ U.S.L.W. __ (U.S. June 16, 2014) (No. 13-10640);
United States v. Graham, 711 F.3d 445, 455 (4th Cir.) (“[W]e are
bound by Almendarez-Torres unless and until the Supreme Court
says otherwise.”), cert. denied, 134 S. Ct. 449 (2013).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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