United States v. Nipper ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4628
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONNIE WAYNE NIPPER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-434)
Submitted: February 23, 2006 Decided: March 1, 2006
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Douglas Cannon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donnie Wayne Nipper appeals the 195-month sentence
imposed after he pleaded guilty to one count of transporting stolen
vehicles in interstate commerce, in violation of 18 U.S.C. §§ 2312,
2 (2000), and possession of a firearm in commerce after a felony
conviction, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2000). The district court concluded that Nipper qualified for
sentencing as an armed career criminal and sentenced him under an
advisory sentencing regime, after consideration of the applicable
sentencing range and the factors under 18 U.S.C. § 3553(a) (2000),
to a sentence in the middle of the applicable guideline range.
On appeal, Nipper asserts that his sentence violates the
Supreme Court’s holding in United States v. Booker, 543 U.S. 220(2005), because his sentence was enhanced based upon facts, i.e.,
his qualifying prior convictions, that were not alleged in the
indictment, admitted to by him, or found by a jury beyond a
reasonable doubt. Nipper 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.
Nipper acknowledges that his argument is foreclosed by existing
Supreme Court precedent on prior convictions and this court’s
decision in United States v. Cheek, 415 F.3d 349 (4th Cir. 2005).
He asserts, however, that the prior conviction exception will
eventually be overruled, based on Justice Thomas’s concurrence in
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United States v. Shepard, 125 S. Ct. 1254 (2005). In Cheek, we
considered and rejected an argument identical to Nipper’s
contentions on appeal. We concluded:
It is thus clear that the Supreme Court
continues to hold that the Sixth Amendment (as
well as due process) does not demand that the
mere fact of a prior conviction used as a
basis for a sentencing enhancement be pleaded
in an indictment and submitted to a jury for
proof beyond a reasonable doubt. Even were we
to agree with Cheek’s prognostication that it
is only a matter of time before the Supreme
Court overrules Almendarez-Torres, we are not
free to overrule or ignore the Supreme Court’s
precedents.
Cheek, 415 F.3d at 352-53.
We therefore affirm Nipper’s conviction and 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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