United States v. Burgess ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4675
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY BURGESS,
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-04-83)
Submitted: January 25, 2006 Decided: March 1, 2006
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Michael A.
DeFranco, 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Unpublished opinions are not binding precedent in this circuit.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:
Anthony Burgess appeals his 135-month sentence following
his guilty plea, pursuant to a plea agreement, to one count of
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) (2000). We affirm.
On appeal, Burgess first argues that his designation as
an armed career criminal for sentencing purposes violates the Sixth
Amendment as set forth in Blakely v. Washington, 542 U.S. 296(2004). His argument is foreclosed by this court’s decision in
United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), pet. for
cert. filed, __ U.S.L.W. __ (U.S. Oct. 25, 2005) (No. 05-7266).
Burgess does not dispute he has at least three prior convictions
qualifying as “violent felonies” and that they were “committed on
occasions different from one another.” See 18 U.S.C. § 924(e)
(2000). Because the facts necessary to support the enhancement
under USSG § 4B1.4(b)(3)(B) “inhere in the fact of conviction,”
there is no error under Blakely, United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005), or their progeny. See Thompson, 421
F.3d at 283, 287 & n.5; see also United States v. Cheek, 415 F.3d
349 (4th Cir. 2005) (holding that the armed career criminal
designation based on prior convictions does not violate Booker),
cert. denied, 126 S. Ct. 640 (2005).
Burgess also claims that the calculation of his criminal
history category violates the Sixth Amendment under Blakely. This
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argument is foreclosed by the Supreme Court’s decision in Booker
where the Court applied Blakely to the federal sentencing
guidelines stating, “[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” Booker, 543 U.S. at ___, 125 S. Ct. at
756.
Accordingly, we affirm Burgess’ 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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