United States v. Oxendine , 150 F. App'x 240 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES MILLARD OXENDINE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-258)
Submitted: September 19, 2005 Decided: October 12, 2005
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael F. Joseph, 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Unpublished opinions are not binding precedent in this circuit.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:
James Millard Oxendine was convicted of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000). He was sentenced as an armed career criminal to 235 months
in prison. Oxendine now appeals his conviction and sentence. We
affirm.
I
After he was stopped for driving on a suspended license,
Oxendine opened the glove compartment of the car and pulled out a
handgun, which he placed on the dashboard. Two sheriff’s deputies
testified that Oxendine informed them at the scene that the gun and
marijuana found in the car were his. One deputy testified that
Oxendine again asserted ownership of the gun later in the day when
he was at the sheriff’s department annex. Darnell Bullard,
Oxendine’s passenger, testified that Oxendine informed officers at
the scene of the traffic stop that the gun belonged to Oxendine’s
mother, Debra Hardin. Hardin testified that the gun was hers.
Oxendine testified that he told one of the officers at the scene
that whatever was in the car was his responsibility, referring only
to the marijuana; he denied claiming the gun as his.
Following his conviction, a presentence report (psr) was
prepared. The base offense level of 14, see U.S. Sentencing
Guidelines Manual § 2K2.1(a)(6)(A) (2003), was increased to 33
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because Oxendine was an armed career criminal. See USSG
§ 4B1.4(b)(3)(B). Oxendine’s criminal history category as an armed
career criminal was VI. The guideline range for offense level 33,
criminal history category VI, is 235-293 months.
Oxendine objected under Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), to his treatment as an armed career
criminal. The district court overruled his objection, adopted the
psr, and imposed a 235-month sentence.
II
Oxendine claims that the district court erred when it
refused to instruct the jury on innocent possession when the
evidence would have allowed a jury to conclude that his possession
of the gun was both innocent and transitory. We review a district
court’s decision whether to give a jury instruction for abuse of
discretion. United States v. Kennedy, 372 U.S. 686, 698 (4th Cir.
2004). We decline to recognize innocent possession as a defense to
an offense under § 922(g)(l). Even if such a defense were
recognized in this circuit, the facts of this case would not have
warranted the instruction. See United States v. Mason, 233 F.3d
619, 624 (D.C. Cir. 2001).
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III
Oxendine contends that his sentence as an armed career
criminal violates the Sixth Amendment under United States v.
Booker, 125 S. Ct. 738 (2005), and Blakely. He asserts that his
offense level should have been 14 instead of 33 because the jury
did not find that he had the requisite prior felony convictions for
armed career criminal status. Because he raised this issue below,
our review is de novo. See United States v. Mackins, 315 F.3d 399,
405 (4th Cir. 2003).
In Shepard v. United States, 125 S. Ct. 1254 (2005), the
Supreme Court instructed that Sixth Amendment protections apply to
disputed facts about a prior conviction that are not evident from
“the conclusive significance of a prior judicial record.” Id. at
1262-63. Here, Oxendine did not contest any facts about his prior
convictions identified as predicate felonies warranting the
increase to base offense level 33. Rather, his is a purely legal
argument. Therefore, the district court did not consider any facts
Oxendine did not admit, and the court’s determination of armed
career criminal status did not violate the Sixth Amendment. See
United States v. Collins, 412 F.3d 515, 521-23 (4th Cir. 2005).
IV
Finally, Oxendine claims that the district court erred by
treating the sentencing guidelines as mandatory rather than
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advisory, as Booker requires. This claim, which Oxendine did not
raise below, is reviewed for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993). Because there is no
nonspeculative basis suggesting that the district court would have
sentenced Oxendine to a different sentence had the guidelines been
advisory, we conclude that the court’s plain error did not affect
Oxendine’s substantial rights, and we decline to recognize the
error. See United States v. White, 405 F.3d 208, 224-25 (4th Cir.
2005).*
V
We accordingly affirm. 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
*
The district court announced an alternate sentence, presuming
that the increase in base offense level from 14 to 33 based on
armed career status might be invalid after Blakely. The court
determined that the guideline range for offense level 14, criminal
history category VI, was 37-46 months, and imposed an alternative
46-month sentence. In imposing this sentence, however, the court
treated the guidelines as mandatory rather than advisory. Thus,
the alternative sentence does not demonstrate that the district
court would have sentenced Oxendine to a different sentence under
an advisory guideline scheme.
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