United States v. Smith ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4932
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD PHILLIP SMITH,
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-03-443)
Submitted: August 18, 2005 Decided: August 23, 2005
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Freedman, WHITE AND CRUMPLER, Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Sandra J. Hairston, L. Patrick Auld, Assistant United
States Attorneys, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Phillip Smith, appeals his sentence following his
guilty plea to two counts of distribution of cocaine in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) (2000) and one count of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Smith asserts that
his sentence violated both United States v. Booker, 125 S. Ct. 738(2005) and United States v. Fanfan, 125 S. Ct. 738 (2005). Finding
no reversible error, we affirm.
Smith first asserts that his sentence violates the Sixth
Amendment because he was sentenced as a career offender.1 This
argument is foreclosed by the Supreme Court’s reaffirmation of the
Almendarez-Torres2 prior conviction exception in Booker. See
Booker, 125 S. Ct. at 756 (“Any 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.”). Likewise, the application of
1
We note that Smith’s two-level enhancement for possession of
a dangerous weapon does not implicate Booker because the facts
underlying this enhancement were admitted by the defendant in his
factual basis for his plea. We further note that Smith’s two-level
enhancement for obstruction of justice does not implicate Booker
because Smith received a higher sentence under the career offender
provision, which did not take the obstruction of justice finding
into account.
2
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
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the prior conviction exception to Smith does not raise any of the
problems outlined in United States v. Shepard, 125 S. Ct. 1254,
1262-63 (2005), or United States v. Washington, 404 F.3d 834, 843
(4th Cir. 2005), because no facts related to Smith’s prior
convictions are in dispute.
Smith next asserts that although his two-level
enhancement for obstruction of justice did not play a role in his
base offense level, which was calculated under the career offender
provision, the district court relied on that enhancement when it
denied his request for a two-level reduction for acceptance of
responsibility. This argument is foreclosed by our decision in
United States v. Evans, ___ F.3d ___, 2005 WL 1705531, at *1 n.4
(4th Cir. July 22, 2005) (No. 04-4522), which stated that for
purposes of determining whether a Sixth Amendment violation
occurred, the sentence imposed is compared against the guideline
range that was properly determined before any adjustments are made
for acceptance of responsibility.
Finally, Smith asserts that his mandatory guidelines
sentence violated the Sixth Amendment. Because this claim was not
preserved for appellate review, it is reviewed for plain error. We
have reviewed the record and find that the district court did not
plainly err in treating the guidelines as mandatory since there is
no evidence of prejudice as required under United States v. White,
405 F.3d 208, 223 (4th Cir. 2005).
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For the foregoing reasons, we affirm Smith’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 decision process.
AFFIRMED
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