United States v. Godley , 257 F. App'x 657 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHAUN DERRICK GODLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan, Chief
District Judge. (4:05-cr-00017)
Submitted: November 14, 2007 Decided: December 10, 2007
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. Anne
Margaret Hayes, Banumathi Rangarajan, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Shaun Derrick Godley pled
guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C.A. §§ 922(g)(1), 924 (West 2000 & Supp.
2007). He received an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C.A. § 924(e) (West 2000 & Supp.
2007). Godley timely appealed.
Godley’s attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), questioning whether the
ACCA enhancement violated his constitutional rights under Blakely
v. Washington, 542 U.S. 296 (2004). Counsel states, however, that
he has found no meritorious grounds for appeal. Godley filed a pro
se supplemental brief asserting that he was denied effective
assistance of counsel. Finding no meritorious grounds for appeal,
we affirm.
Godley asserts that the ACCA enhancement violated his
Sixth Amendment rights because his prior convictions, upon which
the court based the enhancement, were not submitted to a jury,
proved beyond a reasonable doubt, or admitted by him. This court
rejected the same argument in United States v. Cheek, 415 F.3d 349,
352-54 (4th Cir.), cert. denied, 546 U.S. 1010 (2005); see also
United States v. Thompson, 421 F.3d 278, 283 (4th Cir. 2005), cert.
denied, 547 U.S. 1005 (2006).
Godley also contends that the ACCA is unconstitutional
after Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny,
and that Almendarez-Torres v. United States, 523 U.S. 224 (1998),
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is no longer good law. He relies in particular on Justice Thomas’
concurrence in Shepard v. United States, 544 U.S. 13, 26-28 (2005).
However, Justice Thomas’ concurring opinion is of no precedential
value. Godley acknowledges that his argument is foreclosed by
existing Supreme Court precedent and by this court’s decision in
Thompson, but urges that the decision in Thompson be reconsidered
in light of Chief Judge Wilkins’ dissent in that case. However, a
panel of this court may not overrule a prior published decision of
the court. United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
1999).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal.*
Accordingly, we affirm Godley’s conviction and sentence.
This court requires that counsel inform Godley, in
writing, of the right to petition the Supreme Court of the United
States for further review. If Godley requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Godley. We dispense with oral argument
because the facts and legal contentions are adequately presented in
*
In his pro se supplemental brief, Godley argues that counsel
was ineffective for failing to seek a downward departure under USSG
§§ 5K2.12 or 5K2.13. A defendant usually must bring ineffective
assistance claims in a 28 U.S.C. § 2255 (2000) motion unless it
conclusively appears from the record that counsel did not provide
effective representation. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir.), cert. denied, 546 U.S. 1203 (2006). Here, no
such error is apparent from our review of the record.
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the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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