United States v. Witherspoon , 210 F. App'x 256 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4735
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY JAMES WITHERSPOON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00372-JAB)
Submitted: December 14, 2006 Decided: December 19, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy James Witherspoon appeals the 240-month sentence
imposed after he was convicted by a jury of one count of possession
of a firearm after having been convicted of a crime punishable by
more than one year of imprisonment, in violation of 18 U.S.C.
§ 922(g) (2000). The district court concluded that Witherspoon
qualified for sentencing as an armed career criminal pursuant to 18
U.S.C.A. § 924(e) (West 2000 & Supp. 2006).
On appeal, Witherspoon asserts that his sentence was
unconstitutionally enhanced based upon facts, his qualifying prior
convictions, that were not alleged in the indictment, admitted by
him, or found by a jury beyond a reasonable doubt. Witherspoon
does not assert that his prior convictions are not valid predicates
for sentencing as an armed career criminal, but states only a legal
challenge to his sentence. Witherspoon’s argument is foreclosed by
our decisions in United States v. Thompson, 421 F.3d 278 (4th Cir.
2005), cert. denied, 126 S. Ct. 1463 (2006), and United States v.
Cheek, 415 F.3d 349, 352-53 (4th Cir.), cert. denied, 126 S. Ct.
640 (2005).
We therefore affirm Witherspoon’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
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